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HARVARD LAW LIBRARY 



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2-'' 
DECISIONS J, 

WORKERS' COMPENSATION FOR ACCIDENTS ACT 

FILED FOR THE YEAR 1904 

IHBUED UNDBB THE . 

Simtian of t^i Khnttn of ICaboni ($1. fon. $. |. #ihi)Bir). 



NEW ZEALAND. 

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CASES 
WORKERS' COMPENSATION FOR ACCIDENTS ACT 

(From lat Janauy to Slit Deoember, 1904). 

FILED IN FEBRUARY. 



MARLBOROUGH INDUSTRIAL DISTRICT. 

(1.) HUMFFREYS v. MURRAY.— JUDGMENT. 

lu the Court of Arbitration, Marlborough InduBtrial Diatriet, — In 

the matter of " The Workera' Compensation for Accidents Act, 

1900"; and in the matter of an arbitration between Charles 

Mofityn Humfireys, of Havelock, labourer, claimant, and 

Charles Frank Murray, of Wharanui, sheep-farmer, respondent. 

Upon hearing Mr. Baillie, of counsel for the claimant, and Ur. 

UoNab, of counsel for the respondent, and having duly considered 

the matter submitted to us, we do hereby order as follows: — 

i: That the sum of XlOO, paid into Court in this case, be forth- 
with paid to Thomas Soott Smith, Esq., Stipendiary Mi^istrate at 
Blenheim, in the Provincial District of Marlborough and Colony 
of New Zealand. 

2. That the said Thomas Scott Smith shall forthwith pay out 
of the said sum of £100 amounts as follows: — 

(a.) To the claimant the sum of £15 7s. for funeral expenses 
and disbursements made by him, and also the sum of £5 
for immediate requirements and maintenance of his in- 
fant children of the i^es of five years and three years 
respectively. 

(b.) To William Grey Hall Baillie, of Blenheim, solicitor, the 
sum of £7 6s. for costs, including disburaements £1. 

(r.) The sum of 138. for filing and sealing this order. 

3. The balance of the said sum of £100 shall be teld by the 
said Thomas Scott Smith, upon trust, to pay thereout to the 
claimant from time to time such sum or sums of money as he, the 
said Thomas Scott Smith, may, in his absolute discretion, think 
fit, for the maintenance of the two said infant children of tiff said 
claimant. 

Dated at Blenheim this 10th day of December, 1903. 

Fred. R. CHAPif.AN, President. 



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FILED IN MARCH. 



TARANAKI INDUSTRIAL DISTRICT. 



In the Court of Arbitration, Taranaki Industrial District. — In tlie 
matter of " The Workers' CompensatioD for Accidents Act, 
1000"; and in the matter of an application for arbitration 
between the Public Trustee, administrator of the estate of 
George Langnian, deceased, claimant, and Frank Zimmerman, 
respondent. 
Special case stated for the opinion of the Arbitration Court, hy 
agreement of the parties. 

Langman was killed by an accident arising out of and in the 
course of his employment while working as a bushfeller for the 
respondent on the 9th February, 1903. He was employed at a 
wage of Is. per hour, payable in reapect of days and parts of days 
only on which he actually worked for respondent. The employ- 
ment was terminable by either party at any moment 

The deceased commenced to work for respondent on Thursday, 
the 11th September, 1902, and worked for him continuously, in tlie 
sense that there were no breaks and he worked tor no one else, until 
the day of the accident, which was a Monday. He thus earned in 
the months and broken months the following wt^es, which were 
paid monthly: 11th September to 30th September, X6 168. 6d. : 
l8t October to 31at October, ^£8 6a. 8d.; 1st November to 29th 
November, £7 3s. ; 1st December to 31st December, £7 Os. 6d. ; 
let January to Slst January, £6 I7a. ; Ist February to 9th Febru- 
ary, £2 12a.: total, £37 15s. 

We do not find that any question arises qut of the date of com- 
n-iencing and ending the week. Apparently the wages were paid to 
the end of each civil month according to the number of hours 
worked. The civil week, however, runs for the six working-days 
conmiencing with the Monday and ending with the Saturday. 
There were therefore two broken weeks, in one of which Lang- 
man worked three days, and in the other a day or part of a day. 
Apparently his average day only ran to between sii and seven 
hours. 

The question now is, how his average weekly earnings are to be 
competed. We have not been furnished with figures showing the 
earnings from week to week; only the wages earned in each 
calendar month are shown in the case. We infer from the circum- 
stances that Langman had only worked for a few hours on the 



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Monday on which he was killed. Numerous difficult questions 
have arisen as to the interpretation of the expression "average 
weeklj- earnings." According to the circumatances, they have been 
based on the ciTil week or the factory week, or a week computed 
from the contract between the parties. An illustration of the class 
of difficulty which arises may be stated thus: If a man works tor a 
week of sis days at 88. per day, his average weekly earnings are 
clearly iSs.-; if the same man worked during the previous Saturday 
he earned 8s. in that week ; and the qu^tion arises whether his 
average is still +8s. per week, or whether it is not one-half of 568., 
because he earned that sum in two weeks. A somewhat similar, 
but not exactly similar, question arises if he works throughout the 
Monday of the nest week, in which case he has earned 6+s. in three 
weeks. This same question would, however, arise in a more acute 
form if, instead of the whiAe day, he only worked one hoar on that 
Monday, making a total of 67s. still divisible by three. 

We say that the question in the latter case is not esactly similar 
to that in the previous one, because in that case the 8s. earned in 
the (irst broken week cannot be estended by any oonaideration as 
\o what the man might have earned, whereas in the latter case he 
might, but for the accident which caused his death, have gone on 
and earned wages to the end of the week. This discussion cannot 
be considered fantastic. In Lyons v. Enowles and Sons (Limited) 
{190], A.G., 79), the deceased worked as a. collier on Tuesday and 
Thursday, earning 6s. on each day. The colliery week commenced 
on Wednesday. The County Court Judge held that he had worked 
a w«ek at 12s. per wedt; the Court of Appeal held that the Act 
only contemplated an average in the strict sense, arrived at after 
two weeks' working. The House of Lords held that the " average " 
was used in a looser sense, but that tJhe ooUier had worked in two 
wediB, so that his average weekly wage was only 6b. 

In this case deceased worked for twenty-one whole weeks at an 
hourly wage, his earnings lor the week varying with the number of 
hours worked. He had previously worked a broken week, making 
twenty-two weeks. Then he entered a twenty-third week, and wan 
killed on the Monday. The problem is to ascertain by what number 
we have to divide the sum earned to arrive at his average weekly 
earnings. 

This raises the question how the last broken week is to be 
treated. So far as hie contractual relation with the employer is 
roncerned, he might be dismissed or might leave at an hour's notice. 
We do not think that this consideration wholly disposes of the ques- 
tion. In Ayres v. Buokeridge (1902, 1 K.D. 57), in the Court of 
Appeal, the position of the workman is stated by the Master of the 
Rolls as follows : "There were special terms arranged wherebv he 
was to have work for sisty hours per'^week, and, having regard to 
the fact which further appears that he was living at the time at 
some considerable distance from this particular work, there is no 
doubt that special terms were made with him which raised the 

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inference that he was to be employed for a week, and made it pro- 
bable thikt he would be continued in the employment at that rate. 
There ia no doubt that he was liable to be discharged, and could 
discharge himself at an hour's notice, but still he was to be em- 
ployed for a week. In fact, the deceased worked for four days in- 
cluding the day of his death." As we read this passage in the 
judgment we understand it to mean that the actual contract was the 
same as in this case, but that the Court in ascertaining 'the average 
weekly earnings was at liberty to consider the other terms stated as 
assuring the workman siity hours per week — presumably at the 
same wage— and this entitled the County Court Judge to draw the 
inference that but for the accident the deceased would have worked 
the rest of the week at that rate. 

This we treat as an authority for tlie proposition that in drawing 
(he proper inference as to the average weekly earnings we aro not 
bound to have regard merely to the letter of the contract, but that 
we are entitled to look at the surrounding circumstances and con- 
sider what it is reasonably probable that Langman would have 
earned during that week but for the accident. The case is in this 
respect very different from Lyons v. Knowles, where there was no 
ground for drawing any inference that the miner in question 
would have continued working. 

There is nothing in the case to suggest that the work was giving 
out, or that there was any ground for anticipating a cessation 
. of the existing relation between the parties. In these circum- 
stances we think that there is no room for any other inference than 
that Longman would in all probability have earned in that week 
wages at the rate at which he had been earning them. One mode 
of computing these wages would be to establish that week's wage 
as a hypothetical wage by reference to the average of the twenty- 
one unbroken weeks, because the first broken week may be aBSumed 
to have been at approximately the same rate ; but, as this might 
leave room for a minute error, we think that a more absolutely 
exact method is to reject the last broken week altogether, to deduct 
from the sum of £37 15s. the few shillings earned on that Mondnv, 
and divide the remainder by 22, This, we think, will give the 
average weekly earnings on the proper assumption — namely, that 
the averi^ for the twenty-two weeks is ascertained by the history 
of the case, while the true inference from the facts is that on the 
Monday on which he was killed, and consequently in the week in 
which he was killed, Langman was earning wages at the same rate 
as the period which preceded it. 

We do not think that this method conflicts with any cases de- 
cided in the English Courts. Apparently it does conflict with some 
Scotch cases: see Peacock v. Niddrie and Benhar Coal Company 
(4 Fraser [Court of Sessions Cases, Bth Series] 443 ; reprinted in 
WeeHy Notes, 1903. page 162, followed by several other cases 
in the same volume of Weekly Notes). According to these oases, 
whenever the employment continues so that a new week is i 



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meBoed the portion of the week worked has to be counted as a 
week. It seems to ue that this results in the 365th day of the year 
counting as a week, and that, aooording to this mode of computa- 
tion, the year must be deemed to oontain fifty-three weeks. 

In Ke'aat t\ The Barrow Haematite Steel Company (15, Times 
Law Reports, lil) it was held (hat the words "average weekly 
earnings " means the amount earned in a year divided by 52. We 
are not absolutely bound by the decisions of other Courts, and if 
we find them to be in conflict we must choose the course which seems 
to us the most reasonable. 

The method suggested is rational and convenient, and is in 
accordance with the common-sense view that most people would 
take of the words to be interpreted. In Lyons v. Euowles, in 
construing the word "average," the House of Lords set aside the 
strict meaning of the word in favour of what might be termed a 
popular view of its meaning, feeling satisfied that the L^islature 
u)^d it in that sense. We think that we are following this ex- 
Mr. Beven, in his admirable work on " The Law of Employers' 
Liability and Workmen's Compensation, third edition, 1903, 
page 379, lays down a series of rules as his view of the result of 
the oases. One of these rules is as follows: "(3.) Where more 
than a week's work has been done the sum earned during the week 
may still be taken as evidence of the average weekly earnings, and 
the additional day's work may either be rejected or taken as evi- 
dence of the daily increment to the building-up of the weekly sum." 
We approve of this rule, and, subject to a slight doubt as to whether 
wf- ought not also to have rejected the days of the first broken 
week and the money earned on those days, we decide to apply it 

Answer : The average weekly earnings of the deceased are to be 
computed by deducting from his total earnings — namely, £37 15b. 
—the sum which he earned on the day on which the accident hap- 
pened by which he was killed, and dividing the remainder by 22. 

Dated 23rd January, 1904. 

Fredk. R. Chapm/n, J., President. 



WELLINGTON INDUSTRIAL DISTRICT. 



(3.) JOHN SMITH V. GRIFFIX,-JUDGME>JT. 
Ill the Court of Arbitration, Wellington District (Napier). — Under 
"The Workers' Compensation tor Accidents Act, 1900." — John 
Smith, of Napier, labourer, claimant, v. John Griffin, of Na- 
pier, contractor, respondent. 
The claimant claimed in respect of an accident thus described : 
The vessel " Kate Tatham " was discharging coal on a stage, and 



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the claimant was loading coal therefrom into hia dray. A basket of 
coal from the vessel in swinging out frightened the horse, who 
knocked down the staging and injured the claimant. 

Mr. Weatall appeared for the claimant. 

Mr. Lusk for the respondent.^ 

After hearing the evidence and arguments, we informed the 
parties of the conclusion at which we had arrived, and intimated 
our intention of putting our judgment into writing. 

The facts were practically undisputed. The claimant, who is a 
general labourer, had been from time to time employed by the 
respondent, who is a contractor. He waa sometimes employed at. 
road-making, sometimes at other work, but his duties were always. 
about the same, to fill and drive carts engaged in removing material 
of various kinds. On this occasion the parties met, and'respondent 
abked claimant what be was doing. Claimant told him that he waa 
going to shovel ooal for the people who were unloading a collier then 
in the port. Respondent told him to get his (respondent's) horse 
and cart, and work at carting away the coal from the same vessel. 
Claimant started to do this, and waa accidentally injured in the 
manner described soon after be went to work. He said that there 
was no arrangement as to wages, but that he usually got 7s. a day 
in respondent's service. He added that his reason for taking this 
work rather than the shovelling was that he knew that a carter was 
leaving respondent, and hoped to get his place. There was, how- 
ever, no foundation for this hope. Respondent said that he always 
paid claimant Is. per hour, and considered that he was hired by the- 
hour. We adopt this view of the hiring. It was in evidence that 
when hired by respondent claimant's work often lasted some weeks, 
or even months. 

We think that it is more than probable — almost certain — that 
claimant would have remained in respondent's service until thiS' 
vessel was unloaded, but we find no ground tor inferring that the- 
hiring would have continued any longer. This distinguishes the 
case from that of Public Trustee v. Zimmerman, decided in January, 
1904, in which we found that the claimant, a labourer hired by the 
hour, had every prospect of continuous employment for an inde- 
"inite period. 

We recognise that in the case of casual labour care must be 
taken to draw the proper inference from the evidence as to the pro- 
bable continuance of the work. The expression' " casual labour " is 
open to more than one interpretation. We have recognised this in 
distinguishing the last-mentioned case from Lyons v. Enowles 
([1901] A.C. 79), in which the engagement was' so purely casual 
that no inference as to probable continuance could properly be 
drawn. This distinction was fully recognised by this Court under 
the presidency of Mr. Justice Cooper in ReddieV. The Borough of 
Balclutha (Reports of Decisions of Court of Arbitration, 1901-2, 
p. 13), 



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The collier in this case took three days to unload, and ne think 
that it is reasonably certain that in that week, but for the accident, 
the claimant would have earned three days' wages at Ss. per day. 
This makes hia average weekly earnings under this employer £1 48. 
There was no dispute as to how long the effects of the injury would 
last. The award will be tliat 12s. per week be paid t« the claimant 
by the respondent for fifteen weeks from the date of the accident, 
with £7 7s. costs, t<^ether with witnesses* eipenses and disburse- 
ments to be fixed by the Clerk of Awards. These sums are to be 
paid one week after this date. 

Dated the 5th February, 1904. 

Frbdk. R. ChafmaNj J., President. 



FILED IN APRIL. 



WELLINGTON INDUSTRIAL DISTRICT. 

(4.) ANDREWS V. GAMMON AND GAMMON. 
In the Court of Arbitration, Wellington District, (Palnierston 
North). — Under " The Workers' Compensation for Accidents 
Act, 1900." — Richard Andrews, of Pahnerston North, engine- 
driver, claimant, v. George Albert Gammon and William Alfred 
Gammon, of Dannevirke, eawmillers, respondents. 

JuDQUBNT OF TBE CoTIRT, 4TH MabCH, 1904. 

The claim was for oomptensation for injuries arising from an 
accident stated as follows; " Claimant, driving engine, got up to 
oil it, and owing to there being no guard-rail his finger caught on 
tlie guide-bar." The nature of the injury was stated to be " Tip of 
third finger of right hand crushed, and had to be amputated." It 
was alleged that claimant was unable to do any work except light 
work, that his earnings previous to accident were £2 14s. per week, 
and that since the accident the estimated average amount which he 
ii able to earn is £2 per week since the 5th July, when able to 
work, Tlie accident happened on the 9th May, 1903. 

The case was a verj' unsatisfactory one. The accident was stated 
to have happened at respondent's sawmill on a Saturday at five 
minutes past 12, the mill hands having dispersed at a quarter to 
12. A boy who was working with the claimant informed the re- 
spondent's manaiter that claimant was hurt, giving, however, no 
information as to the nature of the accident. All he said was, 
" Dick has got hurt again." The manager went to his house, and 



saw him and bid wife. Claimant then told him, ae he now thinks, 

ill the presence of claimant's wife, that he had hurt himself at his 
own house by letting his window-saHh fall upon his finger. The 
manager believed this, and it seems to have been believed by the 
respondents' representatives until the hearing. Claimant gave an 
absurd reason for thua misleading the manager, but no sordid 
motive oould be suggested for this. We think, despite this untruth, 
that the accident described in the claim really happened at the mill. 
The claimant appeared to be speaking the truth, and Dr. Graham, 
when called by the Court, expressed a very clear opinion that the 
nature of the injury to the finger was such as to render the present 
story probable and the former one highly improbable, and he gave 
other reasons for this conclusion. The boy had left the district, and 
could not be found. The remark made by the boy had reference to 
the fact that this was claimant's third accident. For the first he 
was compensated through an insurance company; the second had 
only affected him for a short time. For these accidents he blamed 
the engine, and the manager blamed him. WV did not inquire into 
this dispute. At the time of the accident claimant was still suffer- 
. ing from the consequence of the previous one, but he was drawing 
his full wages, himself paying the boy £1 per week to assist him. 
He continued after the accident to draw his full wages until the 
10th June, paying the boy to assist him in exactly the same way. 
It is quite clear, therefore, that at the date of the accident his earn- 
ing-power was impaired, and that for the four weeks after the acci- 
dent, tested by pecuniary results, it was not further impaired. We 
have only to consider the extent to which it was reduced by the 
effects of the accident, and we cannot say that during these four 
weeks it was reduced. 

For the purposes of this case we assume that for both these 
periods bis earning-capacity was £2 14s. per week. Dr. Graham 
stated that the loss of the tip of the third finger would not incapaci- 
tate the claimant after two months, and we accept this opinion. 
We have therefore only to deal with the effect of the evidence as to 
a second month from the espiry of the one for which the claimant 
was fully paid. 

The claimant does not appear to have earned anything during 
that month; at any rate, his earnings do not exceed half his former 
earnings. We treat him as partially incapacitated during this 
period, and award him the sum of .£6. 

As the claimant's statement to the manager misled his employer. 
and probably caused this litigation, we allow no costs. 

Fhedk. R. Chapman, J., President. 



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(5.) RINK V. NATHAN AND CO. (UMITED). 
In the Court of Arbitration, Wellington District (Palmerston 
North). — Under " The Workers' Compensation for Accidents 
Act, 1900." — Between Henry Rink, of Makino, carpenter, 
claimant, and Joseph Nathan and Co. (Limited), of Makino, 
butter -merchants, respondents. 

Judgment of the Coukt, 4th March, 1904. 
Thb olftimant alleged that he was injured by an accident arising 
out of and in the course of his employment, and that his spine was 
thereby affected. The accident happened on the 24th or 25th July, 
1903. 

Claimant, who was employed aa a carpenter in respondents' 
factory, stated that, having gone from the room where he was 
working to another room in the course of the performance of his 
duty, he was returning when his foot slipped on the edge of a small 
drain and went down into the drain, tiereby causing claimant to 
tall backwards. He saved himself from completely falling by 
gripping the edge of a door with bis hands, this door being some- 
what behind liim. The movement caused his body to twist. He 
felt a severe shooting pain about his back, wbich, however, ceased 
at onoe. He felt pain that night, but none next day. Afterwards 
the pain gradually increased, but he continued at work until the 
8th August, when he took to his bed, and sent for a doctor on the 
12th August. He was treated for gravel by more than one medical 
man. He or his father called attention to the history of the slight . 
accident, but Dr. Johnson, the first medical man called in, took 
little or no notice of this, as he was satisfied with his diagnosis. 
'I'his treatment was continued until the 15th September, when Dr. 
Graham diagnosed the injury now alleged and sent claimant to 
his private hospital, where he remained five Weeks. The evidence 
leaves no doubt on our minds that claimant was suSering from 
spinal meningitis. Though some slight suggestions were made as 
to strains from dancing, and a fall while roller-skating, based on 
information supplied by claimant, these were too remote in point 
of date to be probable causes of this trouble. The substantial ques- 
tion discussed by medical experts was whetber the injury was attri- 
butable to this accident, and there was a considerable body of medical 
evidence to the effect that a man could have worked as claimant did 
if he had suffered such an injury. Dr. Graham, however, had had 
cases of the kind, and satisfied us that this suspension of symptoms 
was neither impossible nor improbable. He was satisfied, moreover, 
that such a movement as that described by the claimant was a cause 
adequate to produce such an effect. 

Here then we have an adequate cause not too remote from the 
manifestation of the consequences, and a sufficient intervening 
history to connect the two, while against this we have no suggestion 
of any other adequate cause. This, in a civil case, would entitle a 

logic 



jury to find that the injury was caused by the accident described, 
and we think that a fair-minded jury would bo find. We aooord- 
ingly find as a fact that the injury was caused as dlleged. There is 
no doubt that this was aa injury caused by accident, within the 
nteaning of the Act (Boardman v. Soott &. Whitworth: 4 W.C.C- 1, 
85 ; L.T. 502). 

A further queetion was raised as to whether due notice of the 
accident had been given. In this oouDection it must be borne in 
tniod that successive medical geotlemen had inserted that it was a 
case of gravel, and had treated claimant for gravel. In these cir- 
cumstances we think that his own opinion and that of his father 
were so overborne by that of his medical advisers that we are 
entitled to excuse the delay in giving notice, unless there was fur- 
ther undue delay. A formal notice was only given on tiie 29th 
September, bui formal notice is riot necessary. On the 19th Sep- 
tember Dr. Graham certified that claimant was suffering from 
localised spinal meningitis. Claimant had been removed to Dr. 
Graham's hospital three days before. Probably the certificate was 
the first specific information claimant received of Dr. Graham's 
diagnosis. The same promptitude is not to be expected from a lad 
in a hospital as from an older man in his own house. This certifi- 
cate was transmitted to claimant's father, who seems to have given 
it to the respondents on the 21st September. The handing-in of 
the certificate gave sufficient notice of the accident. We think 
that reasonable promptitude was used, though no doubt the delay 
was somewhat hard on respondents. 

In the result we find for the claimant. 

In respect of the claimant's disablement he ia entitled to recover 
.£18 18s., with £7 7s. costs, together with witnesses' espenaes and 
disbursements to be fixed by the Clerk of Awards. 

Fbedk, R. Chapman, J., President. 



NELSON INDUSTRIAL DISTRICT. 



(6.) McCartney «. grant. 

Ill the Court of Arbitration of New Zealand, Nelson District, (Nel- 
son). — Under "The Workers' Compensation tor Accidents Act, 
1900,"— William McCartney, claimant, v, William Yates Grant, 
respondent. 

JoDOMBNT or THE ConRT, 4Te /uLT, 1904, 
The claim was in respect of total disablement for nine weeks, less 
, iwo-thirds of a week, and partial disablement for four weeks. The 
claimant's average weekly earnings were £2 per week, and during 
partial incapacity he was able to earn £1 10s. per week. A pay- 
ment into Court had been made on the assumption that the respon- 

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dent was only liable for half die difference between the claimant's 
earning- power before the accident and that existing during partial 
incapacity. 

That we are not bound by this measure ia now made clear by 
several decisions. (See lUingaworth «. Walmsley (1900) 2 Q.B. 
142; 69 L.J. Q.B. 519; 2 W.C.C. 118 ((C.A.); and Phinix v. 
Brown and Gedde«, Decisions of Court of Arbitration, page 1.) 
Having regard to liie admitted circumstances, and our unfettered 
discretion up to the statutory limit, we award the claimant £10 lOs. 

We have no jurisdiction to allow medical and other expense 
claimed. We allow the claimant £3 Ss. costs, together with wit- 
nesses' eipeDses and disbursements to be fixed by the Clerk of 
Awards. 

Fredk. R. Chapman, i., President. 



FILED IN MAY. 



WESTLAND INDUSTRIAL DISTRICT. 

(7.) BABBOWMAN v. THE NEW GEEENSTONE GOLD-DREDGING COM- 
PANY (LIMITED). 
In the Court of Arbitration, Westland District (Hokitika). — Under 

"The Workers' Compensation for Accidents Act, 1900." — 

Thomas Barrowman (executor of Moses Barrowman, miner) v. 

IV New Greenstone Gold-dredging Company (Limited), (David 

Larnach, Liquidator), 

Mr. Joyce tor claimant; Mr. Murdoch for respondent. 

Judgment of the Court. 
CiiAiu for compensation uuder '' The Workers' Compensation for 
Accidents Act, 1900." 

The nature of tlie accident which caused the death was thus 
stated: " Deceased fell into dam where dredge was floating, causing 
his death by accidental drowning." 

The sole question raised was whether the accident by which the 
deceased lost his life arose out of and in the course of the employ- 
ment. The evidence left no doubt as to the cir cum stances. The 
deceased was an engine'driver and general dredge hand engaged in 
working a dredge belonging to the respondent company at Green- 
stone Creek. This dredge was employed in getting gold, and was 
worked exactly as dredges are worked on the west coast of the 
South Island and in parts of Otago. A dredge is worked by a er«w 
of six, divided into three shifts of eight hours each. A shift always 
consists of two men, unless in an exceptional case where the dredge 



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has an engineer, and in that case he only Domes on board during 
the daytime. The three shifts change in regular succesBion, so that 
night or day work, ia taken turn-about. Of the two men one is the 
winchman, while the other drives the engine and stokes the fire. 
The winchman who is in charge of the dredge can never leave his 
post without stopping the dredge. The dredgemaster takes his 
shift with the other hands, and in it acts as winchman. The engine- 
driver may leave tor short periods when the oircumstanoea require 
him to do ao. When dredging ia not in a river the dredge has to 
make a pool or dam for itself. This dam always remains about the 
same size, as the dredge scoops it out by means of the buckets, and 
at the eame time fills it up with the spoil falling from the elevator 
or sluice-box, which gets rid of the tailings. The dam is usuall}' 
very deep, according to the depth of the ground. As a wateh or 
shift lasts eight hours, it is customary to take a short meal at the 
middle of the shift. As all colonial workmen drink tea with their 
meals, it may be taken as an understood thing that such a meal in- 
cludes hot tea. The dredgemaster employed to manage this dredge 
had been a dredge hand, and knew the custom, and had himself 
r<^ularly taken this meal. When a dredge is not working in a 
running stream the water of the dam becomes fouled, and carries as 
much clay as will remain in suspension in it. It is admittedly im- 
possible to drink such water or to make tea with it. Some com- 
panies provide a bucket for fetching clean water from the nearest 
stream, but there was no such bucket on this dredge. The custom 
on' this dredge was for a man to go ashore with the "billy" in 
which the water was boiled for the toa, fill it, and bring it on board 
to be boiled at the engine fire. This "billy" was tlae property 
of the crew. With unimportant variations the practice observed 
on this dredge was that observed on all dredges in the Greenstone 
district. The dredge was properly equipped, and had floating 
in the dam a proper boat as required by law. The dam was so small 
that it was only necessary for a man going ashorti to moor the 
boat head and storn fo make a bridge to the shore. On the 32nd 
April, 1903, the deceased was working in the wateh from 12 until 
8 a.m. At 4 a.m. the night was dark, and he left his fire to go 
and feteh water from a stream two chains from the dam. The 
watchman, thinking that he had been too long gone, went to look 
for him. He found that the boat had been moored to the herbage 
of the shore. The unfilled "billy" and the deceased's lantern, 
which was still alight, were in the boat. Further search revealed 
the deceased's cap floating in the dam near the boat. The body 
was subsequently found in wat«r 30 ft. deep near to where the cap 
was floating. 

We find as a fact— and as to this there can be no doubt — ^that 
tiie deceased met with an accident whereby he fell out of the boat 
and was drowned, and that this occurred during working-hours, 
when he was going ashore to obtain clear water to make tea for his 
mate and himself, in accordance with the usual and recognised 



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practice. The contest before ub was wtether in theae circum- 
Btancee it ie open to us to find that his death was oaiiHed by 
accident "arising out of and in the course of the employmant. " 
The deceased was paid by the shift, or, more correctly speaking, by 
the hour. 

We have no difficulty in holding that the accident arose in the 
course of the employment, as the thing that the deceased was doing 
was something recx^nised as being properly done during the hours 
oi work ; moreover, in a case like this, if we can properly find thpt 
the accident arose out of the employment, is almost follows that it 
arose in the course of it, though the converse would not be equally 
true. 

The more difficult question is whether it arose out of the em- 
ployment. It has frequently been observed that the words of sec- 
tion 6 are disjunctive and not conjunctive, and that it is incumbent 
on the claimant to prove fulfilment of both conditions. 

The law has been stated generally in the following terms, which 
we think correctly express the result of the authorities: "The 
leading principles which have governed these decisions appear to be, 
fii'stly, that the accident must have arisen from a risk incidental to 
the work which it was the duty of the workman injured to perform, 
giving at the same time " [this statue being a remedial one passed 
in the interest of the workman] " a wide and liberal interpretation 
to the word ' duty ' ; secondly, that the accident must have occurred 
at a time when the relationship of master and servant may be fairly 
held to be subsisting between the injured workman and the em- 
ployer," (Ruegg on Employers' Liability and Workmen's Com- 
pensation Acta, 6th edition (19'03), 262.) 

It has been decided that when a ticket- collector, having finished 
his work, stepped on to the footboard of a railway-carriage to apeak 
to a friend, and thus met with an accident, he was doing some- 
thing unconnected with his employment and for his own pleasure, 
and that the accident did not arise out of the employment (Smith 
1'. Lancashire and Yorkshire Railway Company: (1889) 1 Q.B., 
141; 68 L.J. Q.B., 51; 79 L.T., 633; 15 T.L.R., 64). This 
governs a whole series of cases. There is another series in which 
in a factory the workman injured was doing something intended to 
be in his employer's interest, but outside the scope of his duties, 
and consequentiv not in the course of " the employment " (Lowe v. 
Pearson: L.R. "(1889), 1 Q.B.. 261 : 68 L.J. Q.B., 122; 79 L.T., 
664; IB T.L.R., 124). 

The present case, however, stands on a different tooting, and we 
have come to the conclusion that though it is very close to the 
border-line, the accident arose out of the doing of something inci- 
dental to the work which it was deceased's duty to perform, and so 
" arose out of the employment." The statute does not demand 
that the accident shall be caused directly by the performance or 
attempted performance of some duty imposed by the contract of 
hiring. It is manifest that " arising out of the employment " is a 



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OiHch wider in eipressioo, and ie not intended to exact a very close 
connection in the nature of cause and effect between the employ- 
ment and the accident ; It ia Batisfied if in a fair sense it can be said 
that the one arises out of the other. 

In the cases in which such claims are rejected as not arising out 
of the employment, the accident occurs at a moment in which the 
workman is doing something in which the employer is not interested, 
or else in doing sontething wholly unconnected with "the emploj- 
nient," though it may be that he is endeavouring in some other 
unsolicited manner to serve his master's interests. 

It has been urged that here the deceased was doing something 
in -which his employer was not interested, merely for the comfort 
of his mate and himaelf. We do not think that the employer was 
wholly uninterested in what the deceased was doing. It was in- 
terested in both men doing their work properly. The course of 
practice shows that it is considered that to this end it is reasonalde 
and in a sufficiently accurate sense necessary that the men should 
take a slight meal in the middle of the shift. Included in this is the 
assumption that this mea! shall comprise the customary items. 
We cannot split up the customary meal, and say that one part is 
necessary and another a luiury. In this colony workmen invariably 
drink warm tea with such a meal if they can get it. This involves 
obtaining wholesome water. It was urged that this might have been 
obtained in daylight. There may have been some slight negligence 
in not so obtaining it, hut to do so a man would have had to come 
on board from his home, and then go back and get it, and this would 
in the same shift have sent a man ashore \p the night unless the 
men of an earlier shift remembered to get it, and as the respondent 
company had provided no bucket to store water in through the 
night it may be fairly assumed that it countenanced this practice, 
which was known to the dredgemaBt«r, of going ashore for water 
during the night. Even if this were less clear we should not con- 
sider that negligence falling short of misconduct oSected the ques- 
tion once we had oome to the opinion that the act of the deceased 
performed in some manner was one of such a character thot an 
a<:cident happening during the performance of it arose out of the 
employment. 

The view that we have taken does not conflict with any decided 
case ; on the contrary, it is supported by authority. In Blovelt v. 
Sawyer (L.K. (1904) 1 K.B., 271 ; 20 T.L.R., 106), a workman was 
employed in building a house. He was paid by the hour, the 
dinner-hour being excluded in calculating the number of hours he 
worked. He remained on the premises during the dinner-hour, and 
ate his dinner under a wall which he had been building, intending 
to resume work after the dinner-hour, when the wall fell upon him 
and injured him. It was held by the Court of Appeal that the acci- 
dent arose out of and in the course of the employment. The prin- 
cipal question discussed was whether the workman was in the 
employment during the dinner -hour. The question whether the 



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accident arose out of the employment aeeme to have given the 
Court of Appeal little difficulty. The Master of the Rolls speaks of 
" the time occupied in coining, going, and stopping for any purpose 
ancillary to the applicant's work," and holds that the dinner-hour 
could be counted an part of the time to be used by the applicant for 
purposes ancillary to his work, as for example for e«ting necessary 
food. The case only differs from the present in a way favourable 
to the claimant, as here deceased was clearly doing something 
countenanced by the employer within working-hours. In Keenan 
f). Flemiiigton Coal Company {5 Court of Session, 164), decided in 
1903, a member left the pit-head where he was working to get a drink 
of water and was killed by a runaway hutch when he was returning. 
It was held that lie was killed "In the course of employment" 
within the meaning of the Act. This implies a finding that the 
accident arose out of the employment. In an earlier case, Goodlet 
V. Caledonian Railway Compauy (39 &c. L.R., 795), an engine- 
driver, having housed his engine, and having shortly to take it out 
again, crossed two sets of rails to a spot about 12 yards from his 
post to speak to another employee of the company. What he had 
to say to thia employee was merely a caaual conversation, lasting 
for a moment or two, having nothing to do with his duties as an 
engine-driver. On his way back to his engine he was knocked 
down by an empty train. The Court of Session held that the 
accident arose out of and in the course of his employment. 

For these reasons we find that deceased met his death in such a 
way as to give hia executor a claim under the Act. The sole 
dependent is deceased's daughter, aged sixteen, who was wholly 
dependent on his earnings. His average weekly wage was £2 8s. 2d. 
The amount payable is in this case fixed by the Act irrespective of 
the claim. We award the claimant, on behalf of Emma Jane 
Barrowman, the Bum of £375 14s. with oosta £7 Jg., t^ether with 
witnesses' eipenses and disbursements to be fixed by the Clerk of 
Awards, such sums to be paid by the liquidator within fourteen 
days after notice of this award. 

Dated the SQtii day of March, 1904. 

Frbdk. R. Chapuan, J.. President. 



(8.) PENROSE p. POWELL AND SONS. 

In the Court of Arbitration, Westland District (Westport). — Under 
"The Workers' Compensation for Accidents Act, 1900." — John 
Penrose, of Westport, labourer, claimant, r. John Morgan 
Powell. Robert J. Powell, and George M. Powell, of Charleston, 
near Westport (trading as " Powell and Sons "), respondents. 
Mr. Lynch tor the claimant; Mr. Hanan and Mr. Cottrell for 

the respondents. 

JUDOUENT OF THE COORT. 

This is a claim for compensation for personal injuries under "The 
Workers' Compensation for Accidents Act, 1900." 



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Tbe claimant was engaged in felling bush for the purpose of 
clearing land belonging to the reapondentB, for which he was to 
receive £3 per acre. Tbe application was dated Weetport, the 35th 
day of November, 1903, and was filed at Hokitika on the 
28th November, 1903. It was served on reapondenta on the 11th 
December, 1903. The accident, which resulted in the loss of the 
claimant's left eye, happened on the 29th August, 1903. Statutory 
notice of the accident was served on the reapondents on the 16th 
October, 1903. This made no reference to any claim for compensa- 
tion. 

A preliminary objection was raised that these proceedings for 
the recovery of compensation were not maintainable because the 
claimant had not made a claim within section 12, subsection (2), of 
tlie Act, which says that such proceedings shall not be maintainable 
unless " the claim for compensation with respect to such accident 
has been made within three months after the occurrence of the 
accident." This was met by the suggestions (a) that the filing of 
tbe application was a sufficient claim, (6) that the verbal claim had 
been made and that this was sufficient, and (e) that the respon- 
dents had by their conduct debarred themselves from this defence." 

There has been much controversy as to what is meant by " the 
claim for compensation " ; and this controversy has not been wholly 
closed by the judgment of the House of Lords in Powell v. The 
Main Colliery Company ([1900] A.C., 336; 69 L.J. K.B., 759). 
The views of leading tert-writers are to be found in Beven on 
Employers' Liability and Workmen's Compensation, 3rd edition. 
Part iii. Cap. V., page 409; Ruegg'a Employers' Liability and 
Workmen's Compensation, 6th edition, 347; and Minton-Senhouse 
on Accidents to Workmen, 2nd edition, page 143, cited by this 
Court in Teale v. Stevens (Journal of Department of LabouT, 1904, 
vol. Tiii, page 45). 

One question discussed is whether an application for arbitration 
fulfils the requirement of the Act as a claim for compensation. 
According to the judgment of the House of Lords, the claim for 
compensation is something apart from the request for arbitration, 
and is a claim sent to the employer. The effect of that decision, 
however, is to decide not so much that a request for arbitration 
cannot be a claim for compensation as that when a distinct and 
sufficient claim is made within the time limited by the Act there is 
no limit of time within which the proceedings to cJjtain arbitration 
must be commenced. It has, however, been pointed out by Mr. 
Beven that before there can be an arbitration there must be a 
dispute or difference, and it appears to us that if it is possible to 
rely on the claim made in the application for arbitration as a claim 
for compensation under the Act—and there is authority both ways 
as to this question — it ought to be shown to have been in some way 
treated as a claim made against or sent to the employer. In this 
view, aiid giving the highest value to the application that we can 
give to it, we must conclude that it is out of time, for, thou^ filed 



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at Hokitika, a distsnt town, within the Btatutory tipic for making 
a claim, it was never heard of by the respondents until it was 
served on the 11th December, which was too late. We think that 
those authorities which, since the decision in Powell v. The Main 
Colliery Company, have countenanced the notion that such an 
application may be treated as the claim for compensation must be 
Tinderetood as referring bo an application filed and served or 
brought to the notice of the employer within time. 

Several contentions were put forward to get over this objection. 
These were to the effect that a verbal claim had been several times 
made witliin time, and that the respondents had by their conduct 
waived their right to claim compliance with the Act. 

Assuming, as it has sometimes been assumed, that a verbal claim 
is sufficient, we think that it ought, to be proved with reasonable 
certainty to have been explicitly made in such a sense that tlie 
employer must have understood it to be a claim so distinct that it 
could be referred to the Court in its then form, and that the Court 
ought not to be asked to spell it out from vague conversations. We 
liave taken the whole of the evidence into consideration, and cannot 
find in the conversations deposed to by the claimant as having been 
held separately and quite casually with several members of the firm 
iin>-thing that reasonably suggests that he was making a claim such 
as they might there and then have asked to be referred to the 
C<jurt. No amount was even mentioned, and the conversations all, 
or nearly all, related to the prospects of claimant's obtaining some- 
thing from an insurance company which had agreed to indemnify 
(he employers. Indeed, on one oooasion, according to the evidence 
of Mr. John Powell, jun., "he said be didn't want to see ua put in 
for it." Some bf the conversations deposed to by the claimant were 
denied by the" respondents with whom he said he had had them, 
and at best they were very vague. The nearest approach to a claim 
was in a conversation in which the above remark was made. After 
the receipt of the notice of accident signed by his solicitor, Mr. 
Lynch, which contained no trace of a claim, this respondent said to 
claimant, " So you are suing ue." Claimant seemed to know 
nothing about it. John Powell said respondents had had a letter 
from Mr. Lynch. His evidence continues, ' ' He said he had 
had no conversation at all with Mr. Lynch, but it was Mr. Bird 
(a mining agent). He said the company in Wellington had treated 
him with every kindness, and that the company told him we ad- 
mitted no liability. I told him we had no correspondence whatever 
with the company." This witness says, " He never made any claim 
on us, or said anything to the effect that he made a claim on us." 
The evidence of the o3ier respondents who took any part in the 
matter was to the same effect. With reference to a possible verbal 
claim, Mr. Ruegg at page 352 says, " Must such a claim, when 
arbitration proceedings have not been commenoed, be in writing? 
Is it sufficient if an injured workman meets his master in the street 
and lays, 'I shall want compensation from you for my accident,' 

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or words to that efieot! This question ia etill open. In the course 
of the argument in Powell's case, the Lord Chancellor suggested 
that in hie view such a claim for oompenaation must be made in 
writing, but this was an obiter dictum only. The point did not 
ariae in the case, and the Lord Chancellor's words are not men- 
tioned in the reports." If the claimant had said anything so 
precise as is here suggested we might hare had to consider its effect, 
but no conversation has been deposed to of this nature, nor in 
the circumstances would one expect such a conversation to have 
oc^curred. 

Then, as to the suggestion that the respondents have by their 
conduct precluded themselves from raising this defence, we find no 
evidence to support this. In Teale v. Stevens we dealt fully with 
this subject. Here the conversations were all either of a casual 
nature or had reference to applicant's prospects with the insurance 
company. They were held singly with diflerent members of re- 
spondents' firm, who, being insured, were in no way interested in 
defeating or delaying applicant's claim, or indeed in diminishing 
its amount. These conversations can never have been regarded asj 
business conversations in any sense. 

It was in evidence that the insurance company which had taken 
the matter out of respondents' hands had paid the applicant a small 
sum and sent him to Wellington to have his eye treated, and had 
there asked him to call at their office. We are satisfied with the 
explanations given as to this payment. An injured eye is such a 
serious mattor that the company at once takes the risk of sending 
the injured man to a place where special treatment is available, even 
before the question of its liability is investigated. This payment 
binds neither the employer nor the company, and any payments 
made to applicant by the respondents were made in the ^ame way 
and not in acknowledgement of liability. This answer to the defence 
is not made out. We are therefore compelled to dismiss the claim. 

When the matter came to be investigated it was disclosed that 
the claimant was not working for a weekly or daily wage, but was 
clearing bush-land at £3 per acre. The company then treated the 
claimant as a oontraotor, and not as a servant, and defended the 
claim on that ground, raising the defence' of want of claim at th*' 
same time. We have had to investigate this claim, and have gon*e 
fully into the nature of the emplojrment, and are satisfied that the 
claimant was not a contractor, but was felling aii unspecified area 
of bush to clear the land for fanning purposes at so-much an acre, 
and was doing this subject in all respects to the directions of the 
respondents. We are satisfied that claimant was a pieceworker 
merely, and that but for the defence of want of claim he woiild have 
been entitled to some compensation. 

Application dismissed, with coats £5 5s., witnMses' expenses and 
disbursements to be fised by the Clerk of Awards. 

Dated this !2th day of April, 1904. 

pREUK. R. Chapman, J., Pregidentl 



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FILED IN JUNE. 



AUCKLAND INDUSTRIAL DISTRICT. 

(9,) TURNER r. BAILEY. 
Claiu for half average wages during incapacity caused through the 
bursting of a blood-veasel in claimant's leg, alleged to have hap- 
pened while working for respondent in laying the keel of a sohooner. 
The case was dismissed, with £6 Sa. ooate, with witnesBes' ex- 
penses and disbursements to be fixed by the Clerk of Awards. 



IIOJ QUINN V. THE KING. 
Claim for 50 per cent, of average -wages as oompeosation for an 
injury to both eyes, causing partial loss of sight, sustained while 
engaged in blasting operations at the Co-operative Works at Te 
Akaroa, near HelensTille, on the 24th November, 1902. 

The following is the order made in this matter: "Order that 
application be removed from the list of oaaea for hearing, with 
liberty to applicant to make a special application to the Court for 
leave to have the case reinstated in the list upon such terms as to 
OQsts or otherwise as the Court shall, on hearing such applioation, 
deem just, and with further liberty to respondent to apply on notice 
being given to the applicant to finally dismiss the application. 



TARANAKI INDUSTRIAL DISTRICT. 

(11.) AYRES V. HILL. 

In the matter of " The Workers' Compensation for Accidents Act, 

1900"; and in the matter of an arbitration between Alfred 

Arthur Ayres, of Hawera, factory employee, claimant, and 

Thomas Henry Hill, of Hawera, aerated-water manufacturer, 

respondent. 

Having heard Mr. McCarthy, agent for claimant's solicitor, and 

Mr. Barton, of counsel for the respondent, and it being admitt«d 

that the claimant was injured on the Slst day of August, 1903, 

in the course of his employment as a worker employed by the 

respondent, and it being also admitted that the partial incapacity 

for work of the said claimant ended on the 14th day of October, 

1903, and it being also admitted that the said claimant has already 



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received the sum of ^10 on account of any compensation he might 
be entitled ta -. now, having considered the matter submitted to ub 
(and by consent), we do hereby make our award as follows : — 

1 . We order that the respondent, Thomae Henry Hill, do pay to 
the claimant, Alfred Arthur Ayres, the further sum of £10 as com- 
pensation in full satisfaction of all claims and demands now or 
hereafter to arise out of the said personal injuries caused to the 
said Alfred Arthur Ayres on the Slet day of August, 1903, by the 
said accident arising out of and in the course of his employment as 
a worker employed by the said Thomas Henry Hill. 

2. And (by the like consent) we do further order that the said 
Thomas Henry Hill do forthwith pay to the said Alfred Arthur 
Ayres, or his solicitor, Harry Caplen, the sum of £10 (hereinbefore 
ordered to be paid). 

3. And (by the like consent) we do further order that each of 
the parties to this arbitration shall bear his own costs of and 
occasioned by the same. 

Dated this 15th day of April, 1904. 

Frbdk. R. Chapman, J., President. 



Thb following cases have been settled out of Court: Benness v. 
Pouter, Kirk v. Colonial Sugar Companyj Smith v, Laing, Wilson v. 
Taupiri Coal-mines (Limited), Overall v. Smeed and Others, Norris 
V. Leyland O'Brien Timber Company, O'Grady v. Waihi Gold- 
mining Company and Another, Savage v. Whakatane County 
Council, Brown v. Kempthorne and Co., Hill v. New Zealand 
Crown Mines Company, Francis v. Davidson, Polkingthorne v. The 
Waihi Gold-mining Company, Snodgrass v. George. Boryer v. 
Bailey and Lowe, Kissling ». Fraser and Sons. 



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FILED IN JULY. 



NOKTHERN (AUCKLAND) INDUSTRIAL DISTRICT. 

(12.) ROBERTS V. THE RAGLAN COUNTY COUNCIL, AND JOHNSTONE 

AND JOHNSTONE. 
In the matter of " The Workers' CompenBation for Aooidente Act, 
1900"; and in the matter of an arbitration between Darid 
Roberts, of Hamilton, labourer, claimant, and the Chairman, 
CouncillorB, and Iniiabitants of the Raglan County, and Camp- 
bell JohnstODe and Lindsay Johnatone, of Okete, contractors, 
respondents. 
Eatino duly considered the matter submitted to us, and the re- 
spondents herein having ^ed an admission of the liability to pay 
to the claimant the weekly sum hereinafter mentioned, and the 
claimant having filed an acceptance of the weekly sum so offered by 
the respondents, and neither party making any claim for oostB, we 
do hereby make our award as toJIows : — 

1. We order that the rcspondent>:, the Chairman, Councillors, 
and Inhabitants of the Raglan County and Campbell Johnstone and 
Lindsay Johnstone, do pay to the claimant, David Roberts, the 
weekly sum of 9a. 2d. as oompensation for peraona] injury caused 
to the said David Roberts on the 26th day of February, 1903, by 
accident arising out of and in the course of his employment as a 
worker employed by the said Campbell Johnatone and Lindsay John- 
stone in labouring, such weekly payment to commence as from the 
25th day of April, 1904 (the same having already been paid by the 
respondents to the claimant tor the period from the 12th day of 
March, 1903, to the said 26th day of April, 1904), and to continue 
until the same is ended, varied, or redeemed in accordance with the 
provisions of the Act. 

2. And we order that, as from the said 25th day of April, 1904, 
the respondents do pay to the claimant the said weekly sum of 
Ss. 2d. at such periods as the claimant, the said David Roberts, 
may in writing direct. 

Dated this 18th day of May,'l904. 

liStEDE. R. Chapman, J., President. 



L.. NORTHERN UNION STEAMBO.\T COMPANY (LIMITED.) 
JUDQUBNT OF THE CoDRT. 

. under " The Workers' Compensation for 

The claimant is the father of the deceased. The accident was 
thus described : " Deceased was acting aa engineer, and helping to 
navigate the ferry-boat 'Parora.' The deoeased was apparently 



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struck by a case which w&s on the boat falling upon him, and be 
then fell oTerboard and was drowned." 

Two defences were raised — (1) That the accident which led to the 
death of the deceased did not arise out of and in the course of the 
employment; and (2) that the claimant was not dependent on the 
said James Frederick Sleigh. 

The accident happened on the 7th August, 1903, in the northern 
Wairoa River, off Aratapu. The master had met with an accident 
and the deceamd was in charge of the steamer, which was morred 
at the Kauri Timber Company's wharf. A few minutes before 
6 p.m. deceased apparently noticed an empty box or crate used for 
carrying produce which some one, without his authority, had put 
upon the deck-house of the steamer. He asked the master of the 
" Pilot" who had been putting cargo on board his ship (referring 
to the case). Nobody saw the man fall into the water, though wit- 
nesses saw him sinking. Apparently deceased crossed the deck of 
the "Pilot" to reach the "Parora," which was made fast to the 
'" Pilot's " quarter alongside the wharf. He was seen in the water 
five minutes after the conversation referred to. It is certain that 
he got on board the " Parora " and came into contact with the box, 
which was seen in the water with him. We think that the proper 
inference from this evidence is that deceased went on board to do 
something in the interests of his employers, the owners of the 
vessel, and that while doing or attempting to do this he fell over- 
board. Not only is this the proper inference, but we think it ia the 
oiily inference that can reasonably be drawn. It is, moreover, 
highly probable that he deemed it necessary to do something 
to the bor — - probably to shift it from its position — and that 
in doing this he in some way missed bis footing and fell overboard, 
drawing the box with him, or else that it felLupon him and knocked 
him overboard. These latter conjectures are unnecessary, as the 
first inference involves the conclusion not merely that the accident 
happened in the course of but that it arose out of the employment. 

As to the second question, we find no reason to doubt that the 
claimant is substantially correct in his statement that he was a 
dependant. He says that though he cannot give figures he esti- 
mates bis son's contributions at 5s. per week. We do not find it 
necessary to determine the eiact figure, but we have no doubt that 
these were substantial contributions to the father's cost of living, 
which was probably from 12s. to 15s. per week, and that the father 
relied on these contributions. Further, the son was liable to sup- 
port his father in case of the latter's failure, and we think that the 
actual burden would have been an increasing one, as the father had 
bad health and his infirmity was increasing. Once the contribution 
and the facts of dependence are established we are at liberty to 
draw any reasonable inference as to probable continuance: Sim- 
mons V. White Bros. ([1899] 1 Q.B., 1005), Main Collierv Com- 
pany V. Davies ([1900] A. C, 363). Had the father been"wh<Jly 
dependent on deceased he would have been entitled to sometliii^ 



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over X300. We have a wide discretion up to the amount of the 
maximum in fixing the Bum payable to the claimant (Seven on 
Employera' Liability, 3rd ed., 383). In exercising this diBoretion 
we have t«ated the question of amount in several ways, Buch as by 
estimating the fair cost of annuity of a certain amount, and. by 
uEtablishing the ratio between the son's contribution and the cost of 
the father's support on the one hand, and the amount we propose 
to award and the maximum claim on the other. Approximate 
figures only can be arrived at; but, taking into consideration the 
decision of the Court in W. B. Reid v. Lady Charlton Company 
(DeciBioiis of Court of Arbitration, Vol, i, page 10) and McCluskey 
I.'. SutKKSB Gold-dredging Company (same volume, page 25), we think 
that .£100 IB a fair sum to award by way of compensation. 

Order that within fourteen days from this date the respondent 
do pay to the applicant the sum of £100, together with £12 12s. 
costs, with witnesses' expenses and disbursements, including appli- 
cant's expenses as a. witness, to be fixed by the Clerk of Awards. 
Freds. R. Chapman, J., President. 

27th Mov, 1904. 



The following cases have been settled out of Court : Middlebrook 
i>. Bond Broc. and Judd ; Smith v. The Colonial Ammunition Com- 
pany ; Smith and others v. Riddle Bros. ; Finlayson v. The Duller 
Junction Gold-dredging Company. 



FILED IN AUGUST. 



NORTHERN INDUSTRIAL DISTRICT. 

; following cases have, been settled out of Court: Tierney i 
[g; Middlebrook v. Bond Bros, and another. 



WELLINGTON INDUSTRIAL DISTRICT. 

I'liE following cases hare been settled out of Court: Flood v. 
Kirkpatrick and Co. (Limited); Larking v. Handyside, Roberts, 
and Co. ; Campbell v. McAlister. 



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FILED IN SEPTEMBER. 



WELLINGTON INDUSTRIAL DISTRICT. 

The following decision was given in the Supreme Court, Wellington, 
on the 11th and 23rd March, 1904. Judgment delivered by 
Cooper, J. : — 

114.) WILLIAM ASHCEOFT «. CABLE AND CO. 
IForJrer*' Compensation for Accident — Atseasment of Compen^aion— Part-dependent 

— ReaaowMe and ProporUonatt to the Lota or Damage — Cotit of Uneuecesifut 

Action binder Deaths by AeeideTit ComjiennUion Ad, D ^ 

Where the deceased, beiddeB paying £1 per week to his parents far b&ord and 
lodging, also oonlnbuted money towards the expenses of the family when his 
father vat out of work, Hdd, That the parents were partial dependants of the 
deceaaed worker. 

The sum of £200 was allowed by the Court as the " reasonable and propor- 
tionate oomprauatioa " to wMob the pluntiS was entitled, but ordered that the 
costa of an uDsuocessful aotjon under the Deaths by Accident Compensation Act 
should be deducted. 

Mr. Toung appeared for the plaintiff, and Mr. Jellicoe (and Mr. 
WeBton) for the defendants. 

Cooper, J. — This action was tried before me by a special jury on 
the 26th February, 1904. It was an action for damages under 
"'The Deaths by Accident Compensation Act, 1880," and the Em- 
ployers' Liability Acts. « 

The son of the plaintiff was on the 17th September, 1903. killed 
in the defendants' foundry while in the service of the defendants, by 
an accident arising out of and in the course of his employment. 
The jury found a verdict for the defendants, and judgment for the 
defendants was accordingly given with costs on the higher scale. 

The plaintiS thereupcwi, under section 9 of " The Workers' Com- 
pensation for Accidents Act, 1900," applied to the Court to proceed 
to assess compensation under that Act, and the application was heard 
by me on the 11th March inatast. 

It was proved that the plaintiff was in part dependent on the 
earnings of his son, the deceased, but the defendants contended that 
only a nominal amount should be assessed. 

The deceased had been five days in the employment of the 
defendants as a journeyman boiler-maker at tbe wage of 10s. per 
nay. His avert^ weekly earnings in their employment was there- 
fore £2 10s. per week, he having entered their employment on a 
Monday, and having been killed on the succeeding Friday. He 
had previously been in employment at Luke's foundry, at which he 
had served his apprenticeship, and for some time aft«r the period of 
apprenticeship had expired, and until a fortnight before his death, 
had remained in such employment as a journeyman at the daily 
M'age of 10s. 



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The family conBisMd of the plaintiff, his wife, the deceased, and 
other children, some of whom, including the deceased, were earning 
wages and paying variouB amounts to the plaintifi, and reoeivit^ 
board and lodging, &c., the family Jiving together in a house belong- 
ing U> the plaintiff at Petone. The deceased contributed regularly 
£■1 per week, and received board and lodging and underclothing, 
and his mother paid his lodge fees and insurance premiums. The 
plaintiff had for some time prior to his son's death been in casual 
employment as an engine-driver. There were intervals when he was 
out of employment, sometimes eiteuding for five or sii weeks, and 
during such intervals the deceased gave towards the general house- 
hold expenses a further sum of £1 per week. 

The compensation to be paid to a part- depend ant under the 
Workers' Compensation Act is not to exceed 156 tintes the aver^;e 
weekly earnings of the deceased where the deceased has been for a 
less period tJian three years in the employment of the person from 
whom oompepsation is sought, and it is to be reasonable and pro- 
portionate to the loss or damage suffered by the part- depend ant. 
The principle on which the compensation in such a case is to be 
assessed has been discussed in a number of oases, the principal of 
which are Main Colliery Company v. Davies {1900, L.R., A.C., 358) 
and Howells v. Vivian and Sons (85 L,T., 629). In the latter case 
the Court of Appeal followed the rule laid down by the House of 
Ijords in the former case— that if the deceased paid his wi^es to his 
parents, and they received them and depended on them as part of 
their income or means of living, then partial dependency was 
proved, and held that it was no answer to a claim based on partial 
dependency that the family might be able to support life without the 
contributions of the deceased, the real test being whether thev 
depended on such contributions as part of their income or means of 

In the present case it is clear that the £1 a week paid regularly 
was used as part of the income of the family for the common 
support of the family, the deceased receiving as a member of the 
family board and lodging and washing and some underclothing, and 
also on his own account lodge dues and insurance moneys amount- 
ing to about 4s. or 6s. a week. The extra .£1 a week contributed 
when the plaintiff was out of work was also a material part of the 
income on which the family as a whole was maintained, and by the 
death of the deceased both these sources of income have been lost. 

It is difficult to lay down any definite rule as to the meaning of 
the words " reasonable and proportionate to the loss or damage 
suffered." The amount to be assessed must depend on the circum- 
stances of each particular case. In this ease 1 am satisfied that the 
plaintiff has, by the loss of his son, suffered a substantial pecuniary 
injury, and that his means for supporting the family as a whole have 
been appreciably diminished. 

Taking all the circomstanoas of tie case into consideration , I am 
of opinion that a fair sum for compensation, reasonable and pro- 



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portionate to the loss Huetained, is the amount of £200. The 
funeral expenses were paid from the fund for that purpoue con- 
tributed by the lodge, and I have not therefore taken them into 
oonsideration. 

The deceafted's life was insured for £200. This ia not an element 
to be oonBidered. In Pryoe v. Penrikyber Navigation Colliery Com- 
pany (85 L.T., 477; 4 W.C.C., 115) the Court of Appeal held that 
nrioneys coming to a dependant on the death of a workman were not 
to be ooneidered in estimating the compensation to be assesBed to a 
claimant under the Workman's Compensation Act. The principle 
of the decision in that case applies to insurance moneys as well as to 
other moneys. 

Under section 9 of our Act, the Court in such a proceeding as the 
present one is at liberty to deduct from the compensation all the 
costs which in its judgment have been caused by the plaintiff 
bringing his action at law instead of proceediugs under the Workers' 
Compensation Act, As I consider that if the plaintiff had proceeded 
under the Workers' Compensation Act he would have been entitled 
to the sum of £200 compensation, and as the costs of the action in 
the Supreme Court have been caused by his election to proceed in 
tlie Supreme Court instead of the Arbitration Court, the defendauts' 
costs as between party and party of that action ought to be deducted 
from the gross amount assessed by me. I assess the compensation 
payable to the plaintiS at the balance of the sum of £200 remaining 
after the amount of such costs has been ascertained by the Registrar. 
When this has been done the Court will give a certificate in accord- 
ance with the provisions of section 10 of the Act. 



(15.) HEATH V. UNION STEAMSHIP COMPANY (LIMITED). 
Tub following decision re Compensation for Accidents was given In 
the Supreme. Court of New Zealand^ Canterbury District, and is 
inserted by the courtesy of His Honour, Mr, Justice Denniston : — 

Heath, Appellant, v. The Union Steamship Company (Limited), 
Respondents. 

JnnauBNT of DnimiSTON, J. 

On the I8th July the appellant, while in the service of the Rail- 
way Department, was injured by the negligence of the servants of 
the Union Steamship Company, the respondents. On the 22nd 
August the appellant's solicitor made a claim on the respondents, 
who at once repudiated liability. On the 6th October he issued tiie 
rvummons in the present action, which was heard on the 16th No- 
vember. The Magistrate found negligence proved and assessed 
dam^es at £60, but gave judgment for respondents on the ground 
that appellant had " proceeded against " his employers (the Railway 
Department) within the meaning of these words in " The Workers* 
Compensation for Accidents Act, 1900," section 16, and was there- 



in.^ ..vGoOglc 



fore barred from proceeding against the respondentB. On thift 
point, the facta stated by the Magistrate were ttiese: The accident 
took place on the 18th July. Appellant forthwith gave notioe in 
writing to the Stat ion master under whose control he was at the time 
the accident occurred, and gave weekly reports of his condition to 
his superior officer. Such notices and reports were made at the 
special direction of such officer. Prior to the 14th August, appellant 
received three weeks' accident pay at £1 per week. On the l*th 
August, appellant requested in writing that "the question of acci- 
dent pay remain dormant for a few weeks." On the 16th October 
he issued the summons in the present action. On the 8th October 
his solicitor wrote to the Manager of the Railways; " Mr. J. Heath, 
who met with an accident in July last while discharging timber from 
the ' Waikare ' into the railway-trucks, has been in, and has asked 
me to write to you and request that you will obtain for him the 
weekly allowance to which he is entitled in consequence of having 
met with the accident. He understands it is £1 a week, and has 
asked you some time ago to let it remain in abeyance ; but as he has 
need of it now he will be glad if you will let him have it." On the 
8th October, he signed a voucher in a form wliich was headed " ' The 
Workers' Compensation for Accidents Act, 1900,' and its amend- 
ments," and in which the amount was stated to be charged " to com- 
pensation while incapacitated for work through accident sustained 
while employed as a casual labourer " on the day of the accident. 
The actual voucher was not produced, nor was the amount received 
proved at the hearing or stated in the case. It was, however, argued 
that the whole amount obtainable under the Act was received. On 
these facts the Magistrate found the special defence proved, and gave 
judgment for respondents. 

On the appeal, appellant's counsel stated that the finding of the 
Magistrate that the appellant had, prior to the 14th August, 
received .£3 as three weeks' accident pay, though justified by the 
evidence, was not correct, the statement having been made by 
a witness who had ascribed a payment to another man as to the 
appellant ; and it was stated that evidence to that efiect would be 
found in a file of papers from the Railway Department, which the 
Magistrate had forwarded as part of the case and to be available for 
reference. A statement as to the mistake I have mentioned does 
appear in a letter on that file. But the file was, as I understand it, 
put in to eiplain, but not to negative, any finding by the Magis* 
trate^ and I intimated that I could not assume the statement in the 
letter to be correct, nor could I send back for amendment a case 
which oorrectiy stated the facts as proved in the Court below. I 
intimated, however, that if required I would hold over the appeal 
until the plaintiff could apply for a rehearing. Since the hearing 
the matter has been investigated, and counsel for respondent has 
informed me that he is satisfied the mistake did occur as alleged, and 
that, in fact, no payment in respect of the accident was applied for 
from the Department until the 8th October — that is, after the iuue 



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of th« Bummong againat the respondentB. There is a voucher (un- 
signed) oD the file (to which I am entitled to look for information 
uot inconsistent wiUi any actual finding of the Magistrate) showing 
that appellant received in all from the Department £11 2s. lid., 
and that .£1 16b. 8d. of the total amount he oould recover remained 

The Magistrate, in his reaBons for his judgment, Btatee that 
" as the facts in the present case show that the plaintiff deliberately 
claimed and accepted compensation specifically named as being 
under the statute, he is precluded from bringing this present ac- 
tion." These words were written on the assumption, now admitt<>(l 
to be erroneous, that the appellant had so claimed and accepted 
compensation before bringing the present action. It is unnecesHary 
for me now to consider the case from this point of view, as I have by 
consent to deal with it on the facts now before me and independent 
altogether of the Magistrate's judgment. 

The section on which the defence is founded is in these words : 
"Where the injury for which compensation is payable under this 
Act was caused under circumstances creating a legal liability in 
some person other than the employer to pay damages in respect 
thereof independently of this Act, the worker may, at his option, 
proceed either against that person to recover damages independently 
of this Act or against his employer for compensation under thin 
Act, but not against both; and, if compensation is paid under this 
Act, the employer paying the same shall be entitled to be indemni- 
fied by the said other person." This section is identical with sec- 
tion 6 of the English "Workmen's Compensation Act, 1897," ex- 
oept that in the latter Act the words are, " may at his option proceed 
at law against that person," while the words of our Act are, " may 
at his option proceed against that person to recover damages inde- 
pendently of thig Act " — these last words being in the English Act 
inserted after the words " damages in respect thereof " earlier in 
the section. 

The section in the English Act was the subject of discussion in 
Oliver v. The Nautilus Steamship Company (Limited) (89 L.T., 
p 318). The facts of the case were stated" by Jelf, J., in terms 
none of which were dissented from by the Court of Appeal. The 
plaintifF sued the defandants for injuries caused by the negligence 
of their servants. The negligence was admitted, and damages con- 
tingently agreed on. The defence was the 6th section, which, as 
I have said, is substantially the same as that relied on here.. The 
plaintiS, within a few days after the accident, gave the necessary 
notice of the accident to his employers. He knew of the existence 
of the Workers' Compensation Act, and that, to get oompensation 
under it, notice was required, and in sending the notice he (the 
Judge) says, " Meant to put himself right that way." Between sii 

Snd seven weeks after the notice the o£Boer of the office in which 
le employers had insured plaintiS against accident paid him 
£4 13s, id., being the maximum sum which he oould then have 



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obtained under the Act. He signed a receipt from his employers, 
per the insurftnoe company, for the amount received " on acoount of 
compensation which may be or become due to me under 'The 
Workmen's Compensation Act, 1897,' in respect of the accident 
which occurred to me on the 26th day of November, 1901." Some 
days later he received another pound for the week then due, and 
signed a similar receipt for that 8um. The learned Judge then pro- 
ceeds, " On that occasion, however, I find as a fact that the plaintiff 
having been so advised by the local delegate of his trade-union, gave 
the agent to understand that he took the money ' without prejudice.' 
The agent did not acquiesce in or dissent from this, but made a note 
of the fact, and informed the insurance company thereof. The 
plaintiff, however, kept the money, and received the £1 per week 
in like manner up to and including the £1 due on the 29th May, 
signing similar receipts each time. I find, also, as a fact, that the 
insurance company intended to pay the compensation under the 
Act, and that the plaintiff intended to take it under the Act; but 
that the plaintiff tried, after the first occasion when he got the 
£4 13s. 4d., to keep open any other remedy if he could." Ulti- 
mately, after receiving in all £23 4s. -Id., the plaintiff, on the 29th 
May, said he had been advised not to take any more money, and 
declined the ^1 tendered, and thenceforth no payments have been 
made. The action was brought against the defendants on the 5tb 
June. There was no evidence of any formal claim for compensa- 
tion, in writing or verbal, against the employers or the insurance 
company. On these facts Jelf, J,, gave judgment for the defend- 
ants, holding that plaintiff " exercised his option to go against 
his employers for compensation, and is therefore debarred from 
going also, at common law, against the persons who have, by negli- 
gence, rendered themselves liable to the plaintiff for the damages 
which might be recovered against them." 

In the Court of Appeal the Lords Justices (Williams, Romer, 
and Stirling) reversed this judgment. Williams, L.J., says, " The 
sole question in this case is, has Mr. Oliver received compensation 
fiom the employer under ' The Workmen's Compensation Act, 
1897 "! " In coming to the conclusion that he did not do so, the 
Lords Justices rely entirely on the fact that all the payments except 
the first were received " without prejudice." "The counsel for 
defendant on the Appeal is stated by Williams, L.3., to have ad- 
mitted this and to have accepted the proposition that if there had 
been no first payment maije without being subject to this expression 
"without prejudice" he really could not have supported his case. 
In so doing the learned counsel must have felt unable to contend 
for the correctness of the short ground on which the learned Judge 
in the Court below met the point — that is, by the observation that 
the attempt of the plaintiff, while taking money under the Act. 
to keep open any other remedy if he could — was " an abortive 
attempt to contract himself out of the Act." The Court holds thn* 
the receipt by an employee of money calculated in terms of the 



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Act which he had do claim to except under the Act and which he 
acknowledges in all his receipts to be received " on account of 
compeseation which may be or become due to me " under the Act. 
is not a bar against a third .party whose negligence caused tue 
action, if when receiving the money the employer says he receives 
the money "without prejudice"; although, in the words of Wil- 
liams, L.J., " if there is a receipt and payment of money under 
the Workmen's Compensation Act, and that receipt is in no way 
qualified, I think that is sufficient to bring the case within the 
operation of section 6 and put the workman in the position of a 
man who has proceeded against his employer for compensation and 
recovered it." That is to say, the words "without prejudice" 
prevent it being a proceeding under the Act, and consequently 
a bar to proceedings against a third party. The point does not, 
however, arise in this action. Williams, L.J., explains it thus: 
" Here there was an agent who was standing in the shoes of the 
employer, and who might be expected to act in the same way that 
an employer, taking an interest in his workmen, might be expected 
to act—that is to say, come to the man lying in a state of sufiering, 
as he tlien was, and say, ' Ton are entitled under the Act of Par- 
liament, if you claim compensation, to receive each week a sum of 
money bearing the statutory proportion to your wage. Here it 
is, take it, and take it without prejudice; which means leaving 
rou exactly in the same position as if you bad not taken it, and 
not binding you to retain the money in any way if you, upon rising 
from your sick-bed, should think it better not to accept this money 
from me, your employer, under " The Workmen's Compensation 
Act, 1897," hut elect to take the remedy against the other person 
who has the legal liability describ-jd in the 6th section of the Act.' " 
The case is an authority, binding on me, that what took place 
in the present case is a receipt and payment of money under the 
Act, and sufficient to bring the case within the operation of sec- 
tion 16, unless this result is prevented by the fact of the plaintiff 
having, before the first payment, issued the summons in this action. 
In considering this we have to ask what construction is to be put 
upon the words "proceed against" in section 16. There is, as 
far as 1 can ascertain, no authoritative decision. on the point. In 
the Nautilus Company Case, Jelf, J., puts as the sole question 
in the case, "Has the plaintiS proceeded against his employers 
under the Act within the meaning of section 6 and so determined his 
■election and debarred himself from bringing the present action I" 
He answers the question in the affirmative, and, if I may say so, 
all his observations are well worth consideration. He treats the 
acceptance of compensation as sufficient, and, as I have before 
mentioned, disposes of the "without prejudice" as. an abortive 
attempt by the plaintiff to contract himself out of the provisions of 
the Act : adding that he had taken the first payment without even 
making this attempt. I need not refer to the grounds on which the 
Court of Appeal have held that tlie absolute and unconditional le- 



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oeipt on this first payment can be brought within the subsequent 
proviso to the latter payments "without prejudice." Mr. Justice 
Jelf then holds, with the Court of Appeal, that acceptance of a pay- 
ment from an employer under the Act is a proceeding which bars 
an action; but he does not say what is not a proceeding. Lord 
Justice Romer does not give a direct opinion on the point. He says, 
" In the first place let me point out that under section 6 of ' The 
Workmen's Compensation Act, 1897,' it cannot, I think, be said 
that a workman must necessarily be hei'd to have exercised the 
option given to him by that section as against his employers or 
as against the stranger liable, because he has taken some proceed- 
ings either at law against the stranger or under the Act against 
his employers. Whether the proceedings would in fact be such 
as to bind the workman must depend upon the circumstances of each 
case, including a consideration of what has resulted from the 
proceedings, and whether or not any injury will resuU if the pro- 
ceedings are held not to irrevocably bind tiie workman." That is 
a definite ruling on the point. It is, however, not necessary for the 
decision. He proceeds, "Further, I should like for myself to say 
that, in dealing with any particular case, I should try to look at 
it as a matter of substance, and decide it on the substance rather 
than on matters of form. I will further add that, as at present 
advised, though it is not necessary for me to express a final opinion 
for the determination of this case, I am disposed to think that 
proceedings should not be held to irrevocably bind the workman 
unless those proceedings have resulted in some compensation as 
such having been paid to and received by the workman so as to 
bind the parties." This last observation would also conclude the 
present point. It is, however, only an opinion, but one, of course, 
entitled to great weight. Stirling, L.J., says on this point, " I 
desire to abstain from expressing any opinion as to what might be 
held to be the true meaning of the word ' proceed ' in the 6th section 
of 'The Workmen's Compensation Act, 1897,' only saying that it 
seems to me that great weight should be attacbed to the judgments 
which have been delivered in the Irish case of Beckley v. Scott and 
Co." 1 shall refer to that case later. In Tong i^. Great Western 
Bailway Company (18 T.L.R., p. 566) all that was determined was 
that where there was actual recovery of compensation under the Act, 
an action could not be brought against a third party to recover 
dr.mageB for the same injury. 

That case and the Nautilus Company case are the only cases T 
have found or been referred to direcUy dealing with section 6 
(section 16 in New Zealand). There have, however, been several 
decisions on the oonstruction of subsection (2) of section 1. Thfit- 
provides (subsection (h) ) that, when the injury was caused by the 
negligence of the employer, his civil liability was not to be affected, 
but in thai case the workman " may at his option either claim com- 
pensation under this Act or take the same proceedings as were 
open to him before the oomniencement of this Act; but the ethplo^ 



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shall not be liable to pay oompensatioD for injury to a workman 
by accident arising out of and in the course of the employment both 
independently of and also under this Act." There is a further pro- 
vision (subsection (3) ) that when an action is brought against 
the employer for negligence, and it is determined that the employer 
is not liable in such action, but is liable under the Act, t^e Court 
in which the action is tried shall, if the plaintiff shall bo choose, 
proceed to assess such compensation, subject to deduction for ooEt.": 
of the action. Under these provisions the Court of Appeal, in 
Edwards v. Godfrey ( (189ft) 2 Q.B., p. 333) held that where a 
workman brings an unsuccessful action against the employer he 
must, if he desires com.penBation to be aseeseed, follow the prooedure 
prescribed by subsection (4) of section 1, and if he does not do so 
cannot at a subsequent date initiate fresh proceedings against the 
employer for arbitration under the Act. Smith, L.J., held that the 
Act gave the workman an option of bringing a common-law action 
or resorting to the procedure under the Act; and that, having 
brought the action and failed, his claim to compensation was limited 
to the right given by the subsection. In the course of his judgment 
he says, " As I read section 1, subsection (2), (6), it gives to the 
workman, in cases where he would previously have had a right of 
action, an option, which he may esercise as he likes, of bringing an 
action at common law, or of resorting to the prooedure for the 
assessment of compensation given by the Act itself : this seems to 
me to be the clear meaning of the subsection. The respondent has 
availed himself of the right given him by that subsection ; he has 
exercised his option in favour of bringing a oommon-Iaw action 
which has failed." These words were very much relied on by the 
dissenting minority in Beckley v. Soott and Co. ((1902) Ir. Rep., 
K.B., p. 501). In that case the plaintiff instituted in the Recorder's 
Court (Ireland) proceedings tor compensation under the Workmen's 
Compensation Act. The Recorder dismissed the application on the 
ground that the workman, not having been employed for at least two 
weeks, was not within the Act. This judgment was given on tiie 
authority of two decisions of the Court of Appeal in England. 
These were subsequently overruled by the House of Lords, but the 
decision of the Recorder and its grounds remained on record and 
unappealed -from. The plaintiS then brought his action in the 
superior Court in reepect of the same injuries as were the subject 
of the proceedings in the Recorder's Court. It was held in the 
King's Bench Division by three Judges to one, and in the 
Court of Appeal , by two I^ord Justices to one, that the pro- 
ceedings in the Recorder's Court were no bar to the action in 
the superior Court. The only defence in the superior Court 
was that the plaintiff had exercised his option by taking proceed- 
ings under the Act, not, it was said, in any sense a defence of 
reg judicata. Wright, J., says, "The option is not final; compen- 
sation is what is looked for." And, later, " I am of opinion that Uie 
intention of the Act of Parliament is clear — namely, that compensa- 



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tion shall not be given twice over." Barton, J., grounds his de- 
cision to some extent on the ground that if the plaintiff is outside of 
th€ purview of the Workmen's Compensation Act be cannot be said 
to hare exercised bis option under that Act. "If," he says, "he 
is outside the Act, is he not outside for all purposes, and can any 
of its provisions apply to him?" Gibson, J., dealing with the pro- 
vision that the employer shall not be liable to pay compensation 
both independently of and also under the Act, says, " The expres- 
sion is ' liable to pay,' not ' liable to be sued.' If election to proceed 
by one remedy necessarily and finally excludes the possibility of the 
other remedy afterwards, this provision against double oompensation 
is redilndant, and has no substantive operation." Later, he says, 
" What the section contemplates is apparently a successful pro- 
ceeding, and it does not — in express language, at least — deal with a 
claim failing." And he concludes, "The explicit prohibition of 
double compensation is 'inconsistent with a notion that an incom- 
petent, abortive, and fruitless proceeding can be a bar, or that 
election of one remedy, irrespective of results, necessarily excludes 
the other." In referring to section 6 (16, New Zealand) he does, 
however, observe, "The section prohibits concurrent proceedings 
by action and claim " ; but adds, "but it does not expressly attach 
to the failure of a proceeding against one person incapacity to pro- 
ceed against another." Boyd, J., in his dissenting judgment, 
declines to accept the construction that the workman might take 
pro<«edinge in both tribunals, but could only recover compensation 
in one. In the Court of Appeal, Fitzgibbon, C.J., in dealing with 
section 6, refers to the express prohibition, but also to the fact that 
the indemnity of the employer is only " if compensation "be paid 
under the Act." Walker, L.J., observes that the provision against 
double payment was natural and reasonable, but its existence was 
only consistent with doublo remedy. Holmes, L.J., in dissenting 
from the opinion of the majority of the Court, put the gist of his 
opinion in these words: "As I understand the English language, 
when an option is given to a person to take either of two courses he 
cannot take both ; and, as I understand legal principle, an option or 
election of this kind once exercised must be adhered to." 

I must say that on first impression, and before carefully examin- 
ing the cases, I was inclined to adopt the words I have just quoted, 
and to hold that any act unequivocally indicating an intention to 
adopt one of the two remedies mentioned in the section, is an exer- 
cise of the option and irrevocable. The cases' I have cited show, 
however, that there is a strong weight of judicial opinion against 
any such literal and uncompromising construction of the section. 
In Powell V. Main Colliery Company (1900, A.C., p. 366), Lord 
nalsbury makes some observations on the Act generally. He says, 
"It appears to me that the statute deliberately and designedly 
avoided anything like technology. I should judge from tha 
language and the mode in which the statute has been enacted that 
It contemplated what would be a horror to the mind of »ny 



lawyer, that there should not be any lawyers employed at all, and 
that the man who was injured should be able to go himself and say, 
' I claim 90-much,' and that then he should go to the County Court 
Judge and say, ' Now, please, hear my case, because my employer 
will not give me what I have claimed.' It appears to me that 
that is the meaning and construction of the whole statute, and 
that is what the Legislature intended, and that is why it avoided 
any technical phrases." That case determined that the "claim 
for compensation " in subsection (2) of section I means not the 
initiation of proceedings before the tribunal by which the compensa- 
tion is to be assessed, but a notice of claim for compensation sent 
to the employer. The Lord Chancellor, in dealing with the words 
" take proceedings " in the section he was discussing, says it was 
admitted by all the learned Judges who had discussed the case that 
the word " proceedings " was used in a sense different from that 
which would describe legal procedure ordinarily. In the Nautilus 
Company case there had been no claim for compensation. (The 
giving tiie notice of the accident prescribed under section 2, sub- 
section (1) (New Zealand), section 12, subsection (1), is, of course, 
only a preliminary precaution, and cannot be called proceeding 
against any one.) The insurance company, as the agent of the 
employers, had sought out the workman and offered him the money. 
But his acceptance was held both by Jelf, J., and the Court of Ap- 
peal, as (but for the qualification "without prejudice") a pro- 
ceeding against the employer for cimipensation under the Act, and 
as barring an action against the third party. It is therefore clear 
that "to proceed. against an employer for compensation " has been 
interpreted to cover a friendly payment' initiated by the employer. 
This, indeed, is said by Jelf, J., to be the intention of the Act. It 
shows, however, a very wide and liberal construction of the words: 
as Romer, L.J., says, looking at the substance and not at the form. 
Is it consistent with this way of looking at the Act to hold that a 
workman who, as the Lord Chancellor says, it !a assumed, may be 
acting without l^al assistance, must be held to have irrevocably 
committed himself to an option by taking any step definitely indi- 
cating an intention to b^in to recover against one or oth^r of 
those liable! We have against- this view the very distinct opinion 
of Romer, L.J., which I have quoted. Although the Irish case ia 
not eiactly in point, yet the reasoning and language of most of the 
Judges is in the direction of treating the merely taking some step 
towards recovering damages or compensation as not irrevocable. In 
the Scotch case Ryan v. McLellan (2 Eraser's Soot. Sess. Cas., 6th 
Series, p. 387), quoted by Jelf, J., Lord McLaren says, "It is per- 
fectly plain that compensation under 'The Workmen's Compensa- 
tion Act, 1897,' and under the Workmen's Liability Act are 
mutually exclusive. If a workman accepts compensation under 
the one he necessarily waives his rights under the other. Now, in 
so far as appears from evidence in writing, the pursuer has ac- 
cepted payments under the Workmen's Compensation Act, and 



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so it would appear that he had elected to take compensation under 
that Act." 

In the Nautilus Company case one payment (the first) was made 
without any qualification, and, standing alone, would have been, in 
teiniB of the judgment, a bar to the subsequent action. But their 
Lordships held that in accepting the reservation as to subsequent 
payments the agent of the employers " agreed really that the quali- 
fication was to override the whole of the receipts." That is in 
efFect, the plaintiff asked, and the employer consented, that the 
original payment under tiie Act should be treated as withdrawn or 
cancelled, and treated as made, like the other, conditionally, and not 
under the Act. That certainly assumes that even a payment is not 
''irrevocable" — that it depends upon the circumstanoes of each 
case. The judgment indeed goes further, and decides that there 
may be an actual receipt of moneys, which the workman can, by an 
agreed condition to that eSect, treat at his option as either final 
against the employer, or provisional, leaving him his remedy against 
the third party, subject (apparently) to his liability to repay it to the 
employer. 

I think, therefore, that, looking at the strong expressions in 
the House of Lords as to the non-technical and non-formal manner 
in which this Act has to be interpreted, and at the construction 
judicially put on the words " proceed against " in the section now 
in question and in other sections, I must hold that these words do 
not mean the taking l^al or formal action, or even any isolated step 
towards such action ; but that in all cases a Court must look at the 
substance and not tJie form, and that notliing short of taking, or 
agreeing to take, or recovering oompensation or damages, irrevo- 
fiably binds the workman so as to bar him from his alternative right 
to recover from the employer or third party as the case may be. 
There is a su^ested result from the language of the section which 
may have a bearing on the question.-- It begins thus : " Where the 
injury was caused under circumstances creating a legal liability in 
some person other than the employer to pay damages in respect 
thereof independently of the Act," the workman may at his option 
proceed against the employer or such person, but not against botb. 
But if tiie workman sues a person other than the employer, and 
fails because such person is rfiown not to have incurred any legal 
liability for the injury, does the section applyt It does not say 
" shall proceed against a person whom the debtor may think liable," 
but " who is liable." In that view of the section it would surely be 
a very rigid construction to say that a workman was bound to pro- 
ceed with a claim which he may, subsequently to issuing a aum- 
mona, have discovered or have been advised to be unsustainable. 
This view would support the opinion expressed by Gibson, J., in 
Beokley v. Scott and Co., that an incompetent, abortive, ajid fruit- 
less proceeding cannot be a bar. 

In the very recent case of Taylor r. Hampstead Colliery Com- 
pany (20 T.L.R., p. 166) a Divisional Court {Wills and. Kennedy, 

I,: C..oot;lc 



JJ.) has held that a, workman who has received compenBation for 
injury by accident under a certified scheme agreed upon between 
the employer and his workman under section 3, eubEection ^1), of 
the Act of 1897 is not precluded by section 1, subsection (2), (b), 
from bringing an action under "The Employers' Liability Act, 
1S80." That, however, was on the broad ground that compensation 
under such scheme was not compensation received under the Act, and 
therefore not within the words of section I, subsection (2), (b). The 
proceedings under these sections deal entirely with double claims 
against employers. The decision is based on the particular lan- 
guage of subsection (1) of section 3, and has no bearing on this 

On the law as stated by the Nautilus Company case the plaintiff 
can only succeed in the present action by establishing that he waa 
not entitled to receive the moneys which had been paid as com- 
pensation by his employer under the Act. Doubtless, it that be so, 
the employer would be entitled to recover it from him as money 
paid without knowledge ot the fact which barred the right to recover 
the compensation. But if he succeeded in this suit the result would 
be that he would practically have done what section 16 was obviously 
intended he should not do — obtain payment under the Act while 
retaining his common-law remedy against the third party. 

The indefinite and contusing language of the Act — which is 
practically the same as the New Zealand Act — has been commented 
on by several Judges, and has been descibed by Lord Davey. — ■ 
lyson's Case (1901, A.C., p. 95) — as " eitraordioarily badly 
drawn." I do not in the face of such a conflict of judicial opinion 
pretend to have arrived at the conclusion I have eipressed with 
confidence or certainty. 

The appeal will be dismissed with £10 10s. costs. 

(Decision given 6th May, 190i.) 



FILED IN OCTOBER. 



CANTERBURY INDUSTRIAL DISTRICT. 

(16-) SYKES «. JOHN HAMMETT. 
In the Court of Arbitration, Canterbury District. — WiHiam SykeS, 
claimant, v. J<^n Hammett, respondent. 
Mr. Widdowson for claimant; Mr. Joynt for respondent. 

JCDGHBNr Oy THB CoUBT. 

The applicant, a joiner, aged twenty-five, working as an improver 
for respondent at £2 2s. per week, was, on the 1st October, 1902, 
injured " whereby his right hand suffered leas of fourth finger, part 

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of second finger, and of top joint of thumb; shortening of first 
fiBger, and third finger being rendered stiff and useless." The re- 
spondent at once commenced paying the applicant £1 Is. per week, 
and has paid it ever since, but it was not always quite regularly 
paid. The application for arbitration was filed after a delay of 
thirteen days in making such payment. Though the respondent 
paid these sums, and there was a good deal of corres[>ondenoe, 
respondent had never explicity acknowledged his liability, or 
undertaken t« go on paying them. In his claim applicant claimed 

as follows; " 12. Amount claimed aa compensation 

£300." Exception was taken to the claiming of a lump sum by 
the answer, and the applicant then filed an amended claim claiming 
£] Is. per week. Negotiations had taken place between the appli- 
cant through his father and the Government Accident Insurance 
Office, which may be taken to represent the respondent, for a settle- 
ment on the basis of a lump-sum payment. 

The injury was, of course, permanent, and the result of the 
evidence, in our opinion, showed that the claimant could not with 
advantage work at his trade. During the period of a year and 
nine months since the accident he had practically done nothing 
beyond the light work about his father's house and garden, and 
had earned nothing, though beyond the permanent injury caused 
by the loss of fingers he was in good healta, and even the injured 
hand was healthy and of some use. 

Mr. Joynt urged that no dispute had ever arisen to justify the 
claimant in taking these proceedings, and that they were merely 
instituted as a lever to bring about a lump-sum settlement. It was 
admitt«d that the claimant was anxious to obtain such a settlement 
as would enable him to enter into business as a furniture-dealer, 
in which his father was engaged. We overruled this objection for 
reasons into which, in view of the result at which we arrive, we do 
not think it necessary to enter. 

Incidentally the question was discussed as to whether a claim was 
valid which claimed a lump sum. The circumstances of this case 
render it unnecessary that we should decide this point, but it may 
be pointed out tliat the form of application in use would tempt an 
inexperienced person to claim a lump sum, that this view is further 
encouraged by the Legislature in the amending Act of 1903, sec- 
tion 3, which fixes the limits of a Magistrate's jurisdiction by refer- 
ence to a lump sum, while it is evident that no person could well 
be prejudiced by this form of claim. It is, however, objectionable, 
and ought to be avoided. (See Bevan on Compensation, 3rd ed., 
419.) 

We suggested that the best way to r^ard this case would be to 
treat it as a claim, and at the same time an application to reduce 
the weekly sum. Considering the whole of the evidence, we think 
that the claimant haR not done as much for himself as he might have 
done. Had he had no parental home to fall back upon, he would 
certaintv have exerted himself more than he has done here while he 



was waiting for a lump-sum settlement, to which he is not entitled. 
We are of opinion that he might fairly have earned £-1 lOs. per 
week, and we settle bis future payments on that basis. This will 
not reduce the total sum to which the claimant is entitled as a 



There wilt be a declaration of liability. The payments will be 
«t the rate of £1 Is. until the end of the week In which this judg- 
ment is delivered. Thereafter the claimant will receive payments 
at the rat« of 13s. per week until the amount is redeemed, ended, 
diminished, or increased in accordance with' the provisions of the 
Act. As we consider that the claimant was unnecessarily precipi- 
tate in commencing proceedings we allow no costs. 

Dated this 10th day of August, 1904, 

Frbdk, R. Chapman, J., President. 



The following cases have been settled out of Court: Cos v. Moor© 
Bros.; Thompson v. The Shaw, Savill, and Albion Company; 
Hinks V. G. F. Wright; Martin v. Graham and Greig; Dickens v. 
The Geraldine Road Board; Gibson v. Lane and Co,; Zimmerman 
V. Suckling Bros. 



OTAGO AND SOUTHLAND INDUSTRIAL DISTRICT. 

(17.) KEITH V. THOMAS SPAIN. 

Ill the Otago and Southland Industrial District. — In the matter of 
"The Workers' Compensation for Accidents Act, 1900"; and 
in the matter of an arbitration between Robert Keith, of Dun- 
edin, labourer, claimant, and Thomas Spain, of Ida Valley, 
farmer and hotelkeeper, respondent. 

Having duly considered the matter submitted to us, we do hereby 

make our award as follows: — 

1. We order that the respondent, Thomas Spain, do pay to the 
claimant, Robert Keith, the weekly sum of 198. 3d., as compensa- 
tion for personal injury caused to the said Robert Keith, on the 
1st day of July, 1904, bv accident arising out of and in course 
of his employment as a worker employed by the said Thomas Spain 
in farm-work, such weekly pajTnent to commence as from the 1st 
day of July, 1904, and to continue for twelve weeks from such date. 

2. And we order that the said Thomas Spain do forthwith pay 
to the said Robert Keith the sum of £7 lis. 6d., being the amount 
of ten such weekly payments, calculated from the 1st day of July, 
1904, until the 9th day of September, 1904, less the sum" of £2 Is- 



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already paid, and do tbereatter pay the said sum of ISs. 3d. to the 
said Robert Keith on Friday of every week, until the 23rd day of 
September, 1904, on which day the last payment ie to be made. 

3. And we order that the said Thomas Spain do, within fourteen 
days from the date hereof, pay to the Clerk of Awards, for the use 
of the claimant, his costs of and incident to this arbitration, which 
we assess at the sum of £7 4s. 

Dated this 12th day of September, 1904. 

Fredk. R. Chapuan, J., President. 

(18.) SEED V. JOHN SOMERVILLE. 
In the Court of Arbitration, Otago and Southland District (Milton). 
—Between Mary Jane Steel, claimant, and John Somerville, re- 
spondent. 
Mr. D. Reid for claimant; Mr. Sim for respondent. 

JunOMBNT OF THE CoDBT. 

The claimant claimed compensation under " The Workers' Com- 
pensation for Accidents Act, 1900," in respect of the death of her 
husband, which took place on the 18th July, 1903. Sh« claimed 
that she and her son, who waa born on (he 5th July, 1903, were 
wholly dependent on the deceased. 

The deceased was a ploughman in respondent's employ at a 
regular wage. He entered the service on the 1st December, 1900, 
at a weekly wage of £1 " and found," and was in the service down 
to the day of his death, receiving latterly £,\ 28. 6d. " and found." 
He served sixty-five weeks at the former and seventy -two at the latter 
wage, and the accident occurred ten days before his death. The 
value of his meals, as commonly rated in the district, is equal to 
10s. per we«k. There waa no evidence beyond statements of the 
deceased as to the accident having happened to him in the course of 
his employment. The eviaence, if these statements are to be relied 
on, was explicit and consistent. Five days after the occurrence Dr. 
Sutherland, who was in attendance on deceased's wife, saw a wound 
like an brasion at the root of the left forefinger, the size of a 
gixpenoe, and asking deceased how he got it, was told that he was 
effecting some repairs to a plough and struck it with a hammer. 
Two days earlier, on Saturday, the 11th, he drew his father's atten- 
tion to it, explaining that he gave it a knock by striking at a nut 
on the plough and missing his blow, explaining the occurrence in 
such a way that the father, a farm labourer, understood what he 
was doing when it occurred. The respondent saw him on the 11th, 
when he mai^e no complaint about his hand; but on the next day, 
Sunday, the 12th, he had his hand tied up, and on being asked 
why, said he had hurt it at the plough, and explained that he had 
tied it np as he thought the frost had got into it. After his death 
respondent heard the particulars as to what happened at the ploi^h 
from deceased's father. All these statements, excepting that to 



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Dr. Sutherland, were made when neither the deceased nor any otM 
else attached the smallest significance to the injury ; and even on the 
(Jay on which he told the doctor this the latter did not realise the 
seriousness of the case, still less did the deceased recognise it. 

Apart from these statements, there was no evidence whatever 
that any such accident had happened. We admitted this evidence 
provisionally, and subject to objection. There can be no doubt that 
according to the rules of English law strictly applied this evidence 
would be inadmissible to prove the main issue in this case affecting 
the respondent (Taylor on Evidence, 8th ed., par. 567), though it 
would probably be admissible as part of the history of the case were 
it important in connection with the question when and by what 
means the wound was received and septic matter introduced into it, 
as it then might be considered relevant to the inquiry into deceased's 
symptoms and the cause of them (Taylor on Evidence, par. 680). 
It would not be material, however, to such an inquiry to connect 
the respondent with the origin of these symptoms. In Scotland the 
rule is otherwise, evidence on the relation of others being admitted 
when the relator is since dead and would if living have been a 
competent witness (Dysart Peerage Case, L.R. 6, Appeal Cases 189). 
It is said that the reason is that iu Sootland Judges, not juries, 
determine the facts as well as the law (Taylor on Evidence, 686), 
and they are apparently credited with a faculty for determining 
the real value of such evidence and applying it or not, according 
to whether they consider it of value or not. 

By section 8 of " The Workers' Compensation for Accidents 
Act, 1900," the question of liability "shall be settled as an indus- 
trial dispute by the Arbitration Court under the Industrial Arbi- 
tration Act." The powers of the Court in hearing such a dispute 
are estensive, and, as to the admissibility of evidence, they are 
expressed in section 77, subsection (10): "The Court may accept, 
admit, and call for such evidence as in equity and good conscience 
it thinks fit, whether strictly legal evidence or not." A very im- 
portant question arises in this case, and may at any time arise, as 
to how far the Court ought to act upon this wide power in extending 
the general law of evidence. The law of evidence, though often 
adversely criticized, consists of a body of rules baaed on the ex- 
perience of Courts and lawyers, determining what may and what 
may not be safely relied on as proof of any given fact; and in dis- 
cussing the admissibility of any given piece of evidence it must 
generally be borne in mind that it it is safe to admit it, it is right 
to act on it. We do not propose to detract from this body of rules, 
but, having this discretion vested in us, we think it incumbent 
upon us in all cases where evidence is required beyond that ad- 
mitted by the general law to inquire whether what is proposed can 
be safely relied on. There are instances in which, under the 
general law, unsworn testimony is admitted, such as the well-known 
case of entries made by a servant in the course of his business, the 
declarations of persons who know that they are dying, and otiier 



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xli 

instances ; besides statutory estenaions such as that which admits 
the entries of bankers' booka in proof of the matter contained in 
tiiem. These eioeptions rest on the improbability of such state- 
ments being false and the great probability of their being true; 
and this is largely because it is not probable that they have been 
made in view of the litigation in which they are tendered as evi- 
dence. In the first-mentioned case there is no sort of reason 
for the servant making a false entry, while it would probably prove 
JDConvenient to him were he to do so. In the second case, in our 
nationality, at least, the solemnity of the occasion is oonsidered to 
warrant the truth of the statement. In tiie third case, and other 
cases of statutory extensions of the law of evidence, the entries are 
made, checked, and audited in such a way as to reader them 
probably true. 

We think that similar considerations and somewhat analogous 
reasons apply to this case. A simple question is put respecting 
what is then considered an unimportant injury. A simple and 
probable answer is given at a time when there could not have been 
in the mind of the person giving it the remotest idea that a pecuni- 
ary claim would arise out of the occurrence. We think that, with- 
out detracting from the safe and necessary rules of law respecting 
the admission of hearsay evidence, we ought to admit this evidence 
on the ground that the circumstances are such as to negative all 
id«a of its being manufactured for any purpose connected with 
this claim, and to render it highly probable that the statement was 
in each instance a true answer to the question put. .We have dealr 
at some length with this question, as w« think it important that we 
should thus explain our reasons for using our discretionary power 
in the direction of an isolated extension of the ordinary rules of 
evidence, a power which we ought only to exercise with great 
caution. Evidence of this class should only he admitted where full 
efiect can be safely given to it, and, having admitted it, we are 
satisfied to give full effect to it, and find accordingly that the acci- 
dent which caused a wound on deooased'a finger was an accident 
arising out of and in the course of his employment. 

Several defences were raised : It was suggested that no notice of 
the accideut was given to respondent pursuant to section 12 of the 
Act, and no claim was made within sis months. The respondent, 
however, had, within a few days after the accident and while the 
deceased was still in his empioymeDt, acquired from deceased a 
sufficient knowledge of the occurrence to render it impossible that 
he should be prejudiced by the failure to give a more formal notice ; 
while on the 12th October a formal notice of the accident and an 
explicit claim for compensation were made in writing by the claim- 
ant's solicitor. It was explained that this claim was not made 
sooner because, under orders from her docrtor, the (act of her 
husband's death had been ooncealed from the claimant for nearly 
three months. The explanatioo does not, however, appear to us 
io be necessary, as either the notice was sufficient, or it may and 
ought to be dispensed with, and the claim was made in time- . 



xiii 

We have now to consider whether it is proved in a reasonable 
sense tiiat death was caused by "personal injury by accident" 
within the meaning of section 6 of " The Workers' Compensation 
for Accidents Act, 1900." 

The claimant was confined on Sunday, the 5th July. The acci- 
dent to deceased happened on Wednesday, the 8th. About the 9th 
she became very seriously ill. On Wednesday, the 8th, Mrs. White- 
head, the claimant's monthly nurse, became too ill to get up, but 
she had complained that she felt unwell on Monday, the 6th. On 
Friday, the 10th, she was so ill that she was removed in a convey- 
ance to the manse, deceased assisting to carry her out of his house. 
She developed erysipelas, and died on the 20th or 2l8t, The doctor 
thought that this might have begun on the 6th, or that she might 
have then had influenza, which rendered her more susceptible to 
erysipelas. The wife's illness was puerperal fever, not erysipelas ; 
but the evidence was that the same class of germ might cause 
puerperal fever and erysipelas. This, however, must be treated as 
doubtful. In this case we consider it immaterial. Deceased's 
father lived neit door, in a house only 20 ft. away. He was taken 
ill without premonition on the 31st, and his case proved to be 
erysipelas ; but he recovered. Deceased had a rag on his finger on 
the 9th, but in answer to his wife's inquiry said it did not feel 
sore. His first complaint was on Saturday, the 11th, to his father. 
It then looked " red and watery." On Monday, the 12th, he 
i^topped in his father's house, and said he was going to have a bad 
tinger. Dr. Sutherland first saw it on that day. He thus describes 
the progress of the case: "By the time I saw it on the Monday 
there was considerable inflammation, extending into the whole hand. 
I treated it. I told him to poultice it. On Tuesday 1 saw that 
inflammation was spreading up the arm. I lanced the back of the 
hand to prevent it spreading. In spite of the local antiseptic treat- 
ment, the whole arm got rapidly worse. Patient got rapidly worse 
from day to day. Blood-poisoning set in, and affected the whole 
system. I saw him daily until Saturday, when he died." This 
was Saturday, the 18th. 

It was insisted by the respondent that these facts left it in doubt 
as to whether the deceased's death was connected with the wound, 
and that they pointed to the probability that he had taken ery- 
sipelas when assisting to remove Mrs. Whitehead from his house, and 
that thus, even if it was taken through the wound, the erysipelas was 
a new cause and the true cause of death. Several medical works of 
authority were referred to: Sir F. Treves, in his Manual of 
Siirgery (1889), Vol. i, page 137, says that a special feature of 
erysipelas is its proneness to attack the wounded. "It assuredly 
frequently appears," he says, "without apparent breach of the 
surface " ; but he adds that many consider that a breach of the 
surface at the point of origin, however small, always exists, and 
mentions that some authorities consider that the presence of wounds 
produces a proneness to the disease, to the reception of which a 



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wound is Dot acually necsBsary. " It ie," he adds, " yet unde- 
cided which view, if either, ie correct, and perhaps the question m 
incapable of solution. But thtt fact that the traumatic form begina 
at the wound and spreads outwards seems to imply that the 
materieii morbi has been there received." Bristowe, in his Theory 
and Practice of Medicine (1887), page 300, defines it as " an acute 
inSaumiation of the skin originating for the most part in the 
neighbourhood of wounds or sores, attended with much redness and 
infiltration and severe febrile disturbance, and characterized by a 
marlted tendency to spread over the surface and (especially in the 
presence of wounds) to become contagious." W. Watson Cheyne, 
in Allbutt's System of Medicine, says, " This contagious nature has 
now been conclusiyely proved, and that the disease originates almost 
invariably in connection with alight wounds or abrasions is gene- 
rally admitted." This author questions the suggestion that ery- 
sipelas may give rise by contagion to puerperal fever. He recalls 
that it was formerly not uncommon in ill-ventilated surgical wards 
or such as were sanitarily defective. These several authorities 
appear (o us to agree that, while erysipelas is a contagious disease 
taken into the system from outside, there is always a strong pre- 
sumption that it is taken in by means of a wound or abrasion, how- 
ever small ; so strong, indeed, that the question whether it can be 
received without a wound is disputed, while its reception by the 
wounded is a constant experience. No wound or abrasion is known 
to have eaisted in (he cases of Mrs. Whitehead and the elder Seed, 
but their eiistence is not negatived ; therefore, though these cases 
give support to Sir F. Treve's statement as to the apparent occur- 
rence of such cases without apparent breach of the surface, they do 
not negative the result at which all these authorities arrive as to 
wounds being the common means of access of the germs of this 
disease to the human body. 

We think that the proper inference to draw from this evidenoCr 
fiom the history of the case, and from the local symptoms, is that 
the deceased took erysipelas through the wound, and that a con- 
clusion to the effect that he took it in any other way would be- 
against the weight of evidence. 

From one point of view this conclusion is tliat which we wer© 
invited by counsel for the respondent to draw, as, while insisting 
that it was not proved that the wound was the source of trouble, 
he also argued that deceased took the disease from Mrs. Whitehead, 
and that it is probable that he took it while assisting to carry her 
out of the house. We think that it is extremely probable that the 
disease which ran through the family began with Mrs, Whitehead, 
and that in the small overcrowded house it became a source of 
danger ; that even if the case of the wife be rejected as having a 
different origin, it spread to deceased, and ultimately in some un- 
e^iplained way to his father. 

The ultimate question then is whether, assuming this view of 
the course of the contagion to be correct, it is made out that within 



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sectioD 6 of the Act the cause of death was "personal injury by 
aeeideot." To bring the case withiii the words creating the liability 
a direct connection between the accident causing the wound and 
the death of the deceased must be shown, and the conclusion which 
wc have formed on this subject is based upon the assumption In 
respondent's favour, that the disease may have been takert when 
carrying Mrs. Whitehead out of the bouse, thus attaching but 
little importance to the circumstance that this leaves but the bare 
minimum tinae for the incubation of the disease, especially if the 
father's evidence as to the appearance of the wound on Saturday be 
noticed. 

We think that we are entitled to view the question somewhat 
Isroadly, and in this way; Deceased received a wound on the 8th, 
which ultimately became the means of introducing erysipelas into 
his system; that he did nothing in the way of introducing a new 
cause, and that alt his acts prior to his fatal illness were such as, 
looking at his family surroundings and mode of life, might reason- 
ably be expected ot him ; that, though the introduction of the ery- 
sipelas and his death from that cause was an unexpected result of 
the wound, the proper question is, did death result from that 
accident) and the proper answer is, that in all probability it did. 
Tliis is the way in which the issue is put in Dunham v. Clare (1902 : 
2 K.B., p. 292; 86 L.T., p. 75), where the aoutal difficulties were 
greater than here, and it is the issue which we think the Legislature 
intended should be answered. 

We need not minutely examine the cases of remoteness in actions 
of tort ; they would not assist respondent, and they do not turn 
exactly upon the same case. The rule in case of tort is thus laid 
down by the Supreme Court of the United States in Milwaukee 
Railway Company v. Kellogg (94 U.S. {+ Otto), p. 469): "The 
question always is, was there an unbroken connection between the 
wpongf h1 act and the injury — a continuous operation ) Would the 
(acts constitute a continuous succession of events so linked t«^ther 
as to make a natural whole, or was there some new and independent 
cause intervening between the wrong and the injury? It is ad- 
mitted that the rule is difficult of applioation." See, on this aub- 
jt«t, Hill V. New River Company (9 B. and S., p. 303), Smith v. 
London and South-western Railway Company (L.R,, 6 C.P., 14), 
Beven on Nq^ligence (2nd ed., p. 93 et seq., on "Casual Connec- 
tion "). 

In all the circumstances we are satisfied that there was not in 
the- proper sense a new and independent intervening act or cause 
here, but the events follow in natural sequence; that the death was 
caused by the accident, and that therefore the claimant is entitled 
to succeed. The case is one ot total dependency, and the Act fixes 
the amount of the compensation, under clause 1 of the Second 
Schedule, at 156 times the average weekly earnings of the deceased. 
The award will be for .£244, which we award that the respondent 
pay to the claimant and for the benefit of the claimant and her 



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infant ob.ild in tlie following manner ; Tke aiim of £94 ie to be paid 
to the claimant herself for the support of herself and her child. 
The sum of £150 is to be paid t« the Public Trustee, to be invested 
by him and held by him upon and subject to the following trusts: 
Out of the interest and principal of the said sum llie Public Trustee 
shall make t« the claimant for the support of herself and the main- 
tenance and education of her child such monthly or quarterly allow- 
ance aa he shall think fit, with power upon the application of the 
claimant to vary the said allowance, and with further power upon 
the like amplication to pay over to her any such lump sum as he may 
at any time think likely to prove beneficial to her and her child ; 
and in the event of the death of the claimant before the said sum is 
e;;hausted, the Public Trustee shall administer the balance in euch 
manner for the benefit of the said infant thild as he shall think fit, 
and all parties, including the Public Trustee, shall have the liberty 
to apply for advice ond directions to this Court respecting the said 
sum as they may be advised. 

The respondent will also pay the claimant £15 15b. for her costs, 
together with witnesses' expenses and disbursements to be fixed by^ 
the Clerk of Awards, 

Dated this 13th day of September, 1904. 

Fbbdk..R. Chapuan, J., President. 



(19.) HYNES II. JOHN MCCARTHY. 
In the Court of Arbitration, Otago and Southland District (Milton). 
Between Philip Hynes, claimant, and John McCarthy, respond- 

Mr. D. Reid for claimant; Mr. Sim for respondent. 

JuoailBNT OF THE CoURT. 

Claim under " The Workers' COTnpensation for Accidents Act, 
1900." 

In the filed claim the deceased, Michael Hynes, who was the son 
of the claimant, was described aa a general labourer employed by 
respondent, and the nature of the work on which the deceased 
worker was then engaged and the nature of the accident were thus 
described; "Driving a Bis-horse loaded wagon belonging to re- 
spondent. The wagon capsiKed, and a portion of the contents — ^to 
wit, three bags of coal and one bag or barley — fell upon deceased." 
It was then stated that death was caused by suffocation due to the 
wei^t of the bags on deceased's chest. The accident happened on 
the 19th September, 19d3. 

The defences raised were; (a) a denial that the accident arose 
out of the employment, and (h) serious and wilful misconduct. 

It was part of the duty of deceased to drive the wagon in ques- 
tios, and it was shown that he was a competent wagon-driver. It 
i« necessary to state the history of the case in detail. On the 19ttt 

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of the road where it was perhaps not altogether unsafe to place an 
inexperienced man in his seat, and he never gave any directions 
tn his gubstitute. His recumbent attitude is not one which sug- 
gests that he was fighting against the inclination to sleep, or that 
he was bent on retaining control. 

We do not find that authorities assist us, as the decided oases 
vary very much in the tacts, and all differ from this case; but we 
come to the conclusion that the deceased had so far placed himself 
out of control that an accident happening not while he was " driv- 
ing," as alleged in the application, but while another man was 
driving and he was resting and, as it happened, sleeping, was not 
iin accident arising out of the employment, whatever may be said 
as to its being in the course of the employment. 

We are not called upon to decide what the conclusion would 
have been had the deceased accidentally gone to sleep while in the 
driver's seat in charge of the wagon, and an upset had been thus 
brought about. It is quite .conceivable that sleep brought on 
through no fault ot the driver and due to the nature of the duty 
imposed upon him, to eicessive hours of work, or to some other 
cause arising out of the performance of his service or obedience to 
instructions, might be deemed to be the oommeneement of an acci- 
dent giving rise to a compensation claim. That, however, is not 
the kind of case with which we have to deal. The true cause of the 
accident was the error due to ignorance of driving and want of 
knowledge of the locality made by the man in actual charge in 
}>ulling the horses out of the road in endeavouring to follow Hard- 
ing. The onus of making out his case being on the applicant 
(McNicolas v. Dawson— 1899, 1 Q.B., 773; 15 T.L.R., 242), we 
do hold that he has not satisfactorily shown that the accident arose 
out of the employment, and dismiss the claim.' 

As to the affirmative defence of serious and wilful misconduct, 
we think it unnecessary to decide how far it is made out by the 
above facts. 

As to the (Xwts, we think that they should be adjusted on the 
footing of the respondent having succeeded in the case but having 
failed to prove his affirmative defence of serious and wilful mis- 
conduct by means of witnesses as to drinking. We therefore dis- 
allow him the expenses of the witnesses called to support this 
defence, and which raised a distinct issue, and by way of making 
some allowance to the applicant for the cost of bringing witnesses 
to meet it we allow less costs than we should have otherwise allowed. 
The claimant wilt pay £7 7a. coats of the defence, together with 
witnesses' expenses and disbursements to be fixed by the Clerk of 
Awards. 

Dated this 13th day of September, 1904. 

FKEnR. R. Chapuan, J., President. 



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(20.) SHIELDS V. JOHN MILL AND CO. 
In the Court of Arbitration, Ot^;o and Southland. District (Dun- 
edin). — Between Edward Shields, claimant, and John Mill and 
Co., reapondentB. 
Mr, Platte for claimant ; Mr, Sim for respondents. 

JUDGUENT OF TBB COUBT. 

This U a claim under " The Workers' Compensation for Accidents 
Act, 1900," in reepeot of an accident to claimant, which happened 
on the 18th March, 1903, and is thus described : "Working in hold 
of ship ' Silverstream ' stowing wool when a bale of wool waa dis- 
charged from the wharf-crane down the hold of the vessel and struck 
the claimant, jamming him against the ship's side." The injury 
i'i thus described : " Severe bruise hip and lower part of spine, 
resulting in permanent stiSness and pain, which prevents the 
claimant from beading and stooping, and thus incapacitates him 
from following his usual occupation." He alleged total incapacity 
of permanent duration. He claimed .£1 10s, per week, and alleged 
" Notice not served owing to mistake of claimant." It was alleged 
that claimant had received £29 in respect of the injury. 

Several defences were set up, including (a) denial of total in- 
capacity and permanency, (6) want of notice, (c) claim not made 
within three months, (d) that the amount of compensation was fixed 
bj- agreement at the sum of £29, which was duly paid to the 
claimant, who signed a release and discharge for the same on the 8th 
October, 1903. 

We find as a fact that such a release -was signed with a full know- 
ledge of its meaning and eSect, and with the intention that it 
should operate as an agreement fixing the amount of oompensa- 
tion and as a discharge of the respondents. We think it neoea- 
sary to state the grounds of this conclusion, as we were asked to 
disregard the release upon grounds which, had they been made out, 
would have justified us in so doing. The applicant signed as a 
marksman, being unable to read or write, and the document was 
attested by respondents' clerk. We therefore thought it incum- 
bent on the respondents to support the instrument by means of 
evidence, showing that the claimant knew what he was signing, and 
the full effect of hia act. The respondents were under no induce- 
ment to procure a release beyond getting the matter o& their books, 
as they bore none of the expense, and were fully indemnified by an 
insurance company. After the accident on the 19th April, the 
claimant's wife wrote to Mr. John Mill, the senior partner of re- 
spondents' firm, asking him what he intended doing for her hus- 
band, and describing his condition but not making any further 
claim ; but all questions as to notice or claim may be assumed to 
have been got over by the payment from time to time made to 
claimant, for which he gave receipts, "on account of claim under 
Workers' Compensation Act," or " on account accident," or " pay- 
ment of part claim insurance." Mr. Mill, sen., saw claimant after 

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the accident, and gave him £5, irreBpectife of any liability. There 
wa« a matw of evidence ae to conversations with Mr. Mill, his sod, 
and others about a promise of light work and other matt«rB which, 
in the view we take'of the case, ceaaea to be important. 

It was in evideaoe that claimant had had five previous accidents 
in respondenta' service for which he had been ooiapenaated, from 
which we were a§ked to infer that he was getting too old and was 
not nimble enough for this work. It does not appear clear to as 
that there iras sufficient in this accident to permanently dieable a 
man, but added to exiating rheumatiam it certainly aSected him 
tor some'thne. Medical evidence left it difficult to determine how 
far claimant's inability to do the very heavy work of hie former 
occupation was due to growing stiEFness, increasing' with years, aad 
how far it was attributable to the result of the accident. The onus 
of satisfying the Court on this point is in every case upon tlte 
claimant. One medical gentleman attributed it to the one cause 
and two others to the other. Dr. Coughtrey considered that there 
was no clear evideiice proving permanent injury, while from age 
he had ceased to be fit for hard work. Dr. Borrie, who thought it 
[<robable that there was piermanent injury, had, on the 3rd August, 
given a certificate that Shields " is now fit to resume li^t work." 
Dr. Coughtrey considered that a month or so aft«r that dat« be 
shoirid be able to resume his ordinary work. Dr. Coughtrey's 
opinion was supported by that of Dr. Marshall Macdonald. There 
was evidence that for some years while from time to time gettio^ 
involved in accidents claimant had generally been placed as au 
extra man in gangs in the hold, not as one of the usual gang of 
four. While inclined to attribute the condition for a certain period 
to both alleged causes, we should find it very difficult were we called 
upon to do so to determine when that period ended. We think, 
however, that that is the very thing that the parties intended to 
determine, and did determine themselves. Whether the claimant 
mi^t h»ve done better by holding out or whether he had not really 
a better case than the settlement implied is not now the question. 
The Act (section 8) contemplates settling the matter by agreement, 
and if such an agreement is made this Court does not require juris- 
diction to settle the dispute by arbitration. 

The circumstanoes to which we have referred seem to show that 
it was not unreasonable that the parties should have regarded the 
disablement actually attributable to the accident as temporary or 
difficult to determine, and the consequent money-claim as one not 
running into large figures. In these oircumstances, they met on 
the footing, as it were, of Dr. Borrie's certificate. We are satisfied 
both with the manner in which Mr- Howden, accountant to John 
Mill and Co., gave bis evidence, and with the fairness of his raod« 
of procedure. It is probable that in this case, as in moat othersi 
the claimant regarded his claim as a claim (or insurance— i.e., ooi*- 
eidered that it was the insurance company that had to pay hiiB'. 
H« had a discussion with Mr. Howden in which he told that gentlei 



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li 

man that Dr. Borrie had given him a certificate that he was fit for 
light work. Mr. Howden advised him to wait until he was 
tlMM-oughlv fit, and tlwn oome down and fix up the insurance. 
About three days before be came h« told Mr. Howdeu he now felt 
all right and fit for work. He wanted to go back and start work 
again. Mr. Howdoa asked him if he was ready to " sign ofi the in- 
surance now." He said he was, an<j they went into dates and found 
he bad been oS work twenty-nine weeks. Mr. Howden's evidence 
continues thus: " I asked him if he would feel quite satisfied if we 
paid bim £1 a week for twenty-nine weeks, and be gave us a full 
discbai^e. He said be was quite willing to do that. I told him, 
if he was quite satisfied I would communicate with the company. 
1 communicated with the company. Brownlie sent down a cheque 
and a discharge. Shields came to the ofSce. I told bim I had a 
cheque for £29. I bad paid bim £11. I had a cheque for £15, 
and asked him if he would sign the discharge. He was quite 
willing. Paid him £15. I didn't read the document over. 
Didn't bee much good. I told him it was a discbarge, releasing 
John Mill and Co. from the effect of any accident, and if be signed 
that voucher be would have no further claim against John Mill 
and Co. I was and am satisfied that he understood the matter. 
Firm have no pecuniary interest. They are fully indemnified bv 
ocHUpany. From that time forward Shields never applied for 
furtiier payment. Saw him daily on the wharf. He never hinted 
at compensation until after Mr. Mill returned. After that pay- 
ment I was in the habit of speaking to bim almost daily. Witness 
goes on to say thai he left the matter alone for a couple of months 
after the certificate. He sa^ that on the five previous occasions 
he toc^ a similar release. We do not think that this explicit state- 
ment could be answered save by showing either that fraud bad been 
committed or that olainjant totally failed to understand the effect 
of the transaction. Fraud on Howden's part or on the part of 
the respondents would be motiveless, and was not really suggested. 
What was suggested was that it was incredible that the man should 
knowingly have settled for £39 a claim in respect of permanent 
disablement. We think that this aspect of the case is not sus- 
tained, that the claim though a real one was of very doubtful 
value, that the claimant fully appreciated this and settled it as he 
bad settled five prior claims on what be considered to be a fair basis, 
and that it is proved that he was fully aware of the nature and 
effect of this settlement. 

The claim is dismissed with £7 7s. costs, witnesses' expenses 
»nd disbursements to be fixed by the Clerk of Awards. 

Dated this 13tb day of September, 1904. 

Frbdk. R. Chapkam, J., President. 



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lii 

(2L) TRAVIS T. WALTER SINCLAIR WATERSTON. 
Ill the Court of Arbitration, Otago and Southlagd District (Inver- 
cargill). — Between Cbarlea Alexander McKay Travis, claimant, 
and Walter Sinclair WaterstoD, respondent. 
Mr, J, Macalister for claimant; Mr. Watson for respondent. 

JddOMBNT op the CoiTBT. 

Thb claim set forth that on the ITth February, 190i, the claimant 
was hurt " hauling up a boat by means of a rope. Injury to face, 
chest, and side caused by rope breaking." 

The respondeat set up an affirmative defence only — namely, th)it 
payment of £1 per week to the 4th June, 190i, had sufficiently 
compensated claimant for his injuries. 

The claimant, a young man, employed as a ooal-carter at £2 
per week, and described by bis employer as capable of labourer's 
work involving heavy lifting, 4c., had received a severe crushing 
blow on one side in the manner described. There is no doubt that 
his side was hurt and his lung injured to some extent. According 
to his own account his spine was hurt. The question to be de- 
termined was a question of fact — namely, whether he had recovered. 
TTiere was conflicting medical evidence, but the conflict was more 
apparent than real, as the medical witnesses on one side depended 
on statements of the claimant as to what he felt, while a medical 
gentleman called on the other side relied solely on what he oould 
discover from his own examination. We are quite satisfied that 
the claimant was severely bruised, and that the effect of this waa 
not merely evanescent. We find ourselves, however, in a difficulty 
in attempting to determine the probable duration of the claimant's 
inability to do hard work, as fie waa not perfectly candid in 
endeavouring to assist us. He had taken what must be deemed to 
be hard work on three several occasions since the accident, and on 
hearing of one of these occasions his employer stopped the payment 
of £1 per week which he had at first allowed bim. Claimant did 
not, until pressed in cross-examination, fully disclose the extent 
of his work, and with respect to one job he gave a reason to the 
Court for throwing it up which was different from that given to 
an independent witness. He had twice worked for this witness, 
on one occasion for sis days; but we give credit to the evidence of 
his medical adviser to the effect that this work, which was done 
some months since, wM on hearing of part of which the payments 
were stopped, was undertaken too soon. We also accept the state- 
ment of this medical witness to the effect that the mischief in the 
neighbourhood of the lung has not wholly disappeared, but will 
probably disappear in a month or two. As to the alleged soreness 
on the spine, testa taken at intervals of the relative strength of the 
claimant's right and left hands show that normal equilibrium is 
being rapidly restored, and we decide that in the absence of more 
distinct evidence as to the gravity of the symptoms respecting the 
soreness, we must for the present hold that the claimant is well on 
ihe way of being relieved of this disability. 



llii 

The award wili be a declaration of liability with oompenBatioii 

at the rate of XI per week until the end of the week ending on or 
next after the 31st October, 190*. The ocunpeasation will then end, 
unlesB a further order of the Court be hereafter made under the 
declaration of liability. The respondent will pay to the claimant 
£7 7s. costs, with witnesses' expenses and disbursements to be fised 
by the Clerk Of Awards. 

Dated this 8th day of September, 1904. 

Frbdk. R. Chapuan, J., President. 



(22.) DECISIOX OF THE COURT RE INVESTING COMPENSATION 
MONEY. 

In the Court of Arbitration, Otago and Southland Industrial Dis- 
trict (Dunedin). — Between Bessie Warren, of Dunedin, widow, 
applicant, and Gilbert Ure Warren (an infant), respondent. 
Mr. Barclay for applicant; Mr. Stilling for infant respondent. 

JCDOMBNT OF THE CouRT. 

Thb applicant, the widow and administratrix of the deceased, had 
agreed to acoept .£390 in settlement of the claim. She is a yoii 
woman with one child, a son of nine years of age. The husband 
had died intestate, leaving an estate of which his infant son's share 
was equal to about £200. The applicant, seeing that there, was in 
a sense a conflict of interest between herself and her son, had ap- 
pointed Mr. Stilling as counsel to act in his interest. Counsel for 
both parties concurred in advising that the Court should be asked 
to direct that the amount of the son's share of his father's estate be 
paid into the hands of the Public Trustee to await his attaining 
twenty-one years, and that his actual fortune should be thus secured 
against all risk, and that the whole compensation should be paid to 
the widow, who was under the obligation of supporting her sou. 

We desire to say, in the first place, that we think it open to 
objection in principle that the widow should hare appointed counsel 
to represent her son, thou^ she acted in the manner she thought 
best in her son's interest, and in the absence of a settled practice, 
quite reasonably, while the appointment is one of which we entirely 
approve. The appointment should not, however, oome from a 
person adversely interested, as the duty of counsel is analogous 
to that of guardian (Dunedin Finance Company v. Baird — 
11 N.Z.L.R., 192). This Court will in a case where it seems neoes- 
Bary appoint a guardian ad litem, and has at times done so. In 
ordinary cases, however, it will, on the su^estion of a party in 
the applicant's position, content itself with appointing counsel to 
advise in the interests of a person under disability by analogy to 
Rule 71 of the Code of Civil Procedure. The selection of counsel 
in such a case will be made by the Court, either at the instance of 
some relative unconnected with the applicant or by some mode of 
selection adopted by itself, but always with a sense of responsibility 
towards the person interested. In a case at Blenheim, where the 
parties were infants and were poor, the solicitor for the r 



e respondent. 



lir 

who was no longer interested in the case, aesi8t«d the Court. Ad 
application to appoint counsel may be made by lett«r addressed to 
tho Clerk ef Awards wheo the Court is not aitting in the industrial 
district, and will be dealt with wherever the Court may be. 

With respect to the fund itself, we think that we ought to oon- 
ttider ourselves to be in a sense the guardians of the infant, and 
that we ought to prescribe conditions from this point of view such 
as will protect the interests of the infant without hampering the 
mother or interfering with the ordinary jurisdiction of the Supreme 
Court. The order which we think the proper one to be made is ae 
follows; That upon payment by the applicant as administratrix 
of the late husband's estate to the Public Trustee of the auiount 
found to belong to the infant, Gilbert Ure Warren, as part of his 
late father's intestate estate, the following oonsecjuences ensue: 
(1.) That tJiere be paid to the Public Trustee the further sum of 
£100 out of the moneys paid or to be paid by way of compensa- 
tion for the death of the deceased, and, subject to the payment of 
the costs herein mentioned, that' the applicant receive and retain 
the balance of the said sum of £390 herself, (2.) That whenever 
she shall find it necessary to obtain any further sum or sums to be 
applied to or towards the maintenance and education of her said 
son, she be at liberty to apply to the Public Trustee therefor. 
(3.) That upon such application the Public Trustee shall be entitled 
to make her such payment or payments as he shall in his discretion 
think fit until the said sum and all accrued interest be exhausted. 
(i.) That until such sum be exhausted the Public Trustee have 
liberty to pay to her for the maintenance and education of her son 
the interest accruing in his hands, as well in respect of the said sunt 
as in respect of the sum paid to the Public Trustee as part of the 
distributive share of the said Gilbert Ure Warren of his deceased 
father's estate, and in the event of her dying before the said sum 
is exhausted, the Public Trustee shall administer the same for the 
benefit of the said Gilbert Ure Warren in such manner as he shall 
think best. (5.) That when the said sum is exhausted the Suprem* 
Court has exclusive jurisdiction to make orders respecting the dis- 
position of the sum representing the distributive share of the said 
Gilbert Ure Warren of his deceased father's estate, and the interesl 
thereafter accruing thereon. (6.) That nothing in this order coo 
tained shall be deemed to afiect the l^al liability of the respondeni 
to support her said son. (7.) That the parties and the Public 
Trustee have liberty to apply to this Court as they may be advised, 
(?*.) That there be allowed to the applicant's solicitor the sum of 
£7 7s, and disbursements, and to Mr. Stilling the sum of .£3 Ss, 
out of the sum by way of ooinpensation. 

Dated this 13th day of September, 1904. 

Fkbdk. R. Chapuah, J., President. 



The following cases have been settled out of Court : Campbell w. 
Joseph Hatch; Penman v. The New Zealand Coal and Oil C<Hn- 

pany. ^ . 

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FILED IN NOVEMBER. 



WELLINGTON INDUSTRIAL DISTRICT. 

(23.) ROBERTS V. CAMPBELL AND BURKE. 
Id the Arbitration Court, Wellington District (Wellington).— Walter 
Roberts, of Wellington, apprentice, claimant, v. Alexander 
Campbell, and Daniel Burke, of Wellington, carpenters, re- 
spondents . 
Izard for claimant; Treadwell for respondents. 

JunOMEHT OF THE CODKT. 

Claimant was an apprentice at 13s. per week under articles which 
gave him periodic increases of wages : shortly before his wages had 
been 8s. He was u lad of fourteen or thereabouts. It was ad- 
mitted that even when he had completely learnt hie trade, the injury 
which he had suffered, inToiying the loss of fingers, would prevent 
him from earning full w^es. The employers had continued to pay 
his full wages, and there was do reason to doubt that they would 
fulfll their obligations under the indenture. 

Izard, for complainant, only asked for a declaration of liability, 
leaving any further question to be determined when the indenturea 
had espired. 

Treadwell asked for a ruling as to an infant claiming without 
the intervention of a guardian ad litem, and as to the power to 
Hppoint one. There is no rule here analogous to the English 
Rule 7. 

hard stated that the lad's father was willing to act if the Court 
held that it could appoint him. 

Thb Pbbbidbntt The Act creates the right to compensation, and 
the mode in which the infant claimant is to recover is a question of 
(•rooedure over which the Court has control ("Industrial Concilia- 
tion and Arbitration Act, 1900": sections 76, 90, 102, (!), (a)). 
This cannot be affected by the want of a rule. In a Magistrate's 
Court the case is different, for there the superior CourtR are open; 
here this Court alone can give the rdief. The Court will make an 
order appointing the father guardian ad litem, as in a case in the 
Supreme Court. 

Treadwell asked the Court's direction as to how the declaration 
of liability should be drawn up. He suggested that the apprentice, 
when he had fulfilled his indentures, "would at most become entitled 
to half his present wages. Hia earning-power would certainly be 
greater than that. The practice had been adopted in England of 
making a declaration of liability and awarding Id. per week, to be 
varied on application. This has been held unnecessary (Chandler « 



oo< 



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Iri 

^rnith: 1899, 3 Q.B., 506, 516), though th« nominal sum is etill 
sometimes awarded. He objected to coete being ordered. 

Thb Pbebidbnt ; We have made a practice of raaking a declaru- 
tion of liability without awarding a nominal sum. We make Bucli 
an order in this case. This will leave it open to claimant to apply 
to the Court to fix the amount of compensation when so advised. 
As to costs : The institution of these proceedings was necessary for 
the protection of respondents as well as in the intereetfi of claimant, 
^8 an agreement under section 8 could not be made with the 
infant. We allow £3 3s. coats. 

Dated the 30th day of September, 1904. 

Fkeok. R. Chapman, J., President. 



134.) COLLIER V. HOPKINS. 
In the Court of Arbitration, Wellington District (Wellington). — 
Collier, claimant, v. Hopkins, respondent. 
Dunn for claimant; Treadwell for respondent. 

Judgment of thb Court. 
Thb application was filed on the 23rd December, 1903. There were 
some negotiations, and on the 24th February, 1904, liability was 
acknowledged, as was also the amount payable. This was not 
arrived at without Bome dispute. A reply was filed in September, 
1904, shortly before the sitting of the Court. This was after 
claimant's solicitor had written claiming costs of the application. 

The Prbsident: We think that in the particular ciroumstanoes 
of this case the filing of the application is shown to have been a 
neoeseary step which brought matters to a head, and that a right to 
some costs is shown. That being so, the claimant has a right to 
come here and apply for them. We allow £2 2s. cost«. 

Dftt«d the 30th day of September, 1904. 

Freds. R. Chapman, J., President. 



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(26 ) McCROaSAN V. BARTON (REVIEWING WEEKLY PAYMENTS). 

1.1 the Court of Arbitration, Wellington District (Wellington). — 

William McCroBsau, applicant, v. John Barton, respondent. 

Mr. D. M, Fiodlay for applicant; Mr. Myers for respondent. 

JUDOUSMT OF THB COUBT. 

MoTiOH to review weekly paymente under " The Workers' Compen- 
sation for Accident* Act, 1900." 

In September, 1903^, claimant had judgment in this Court award- 
ing him a declaration of liability and half-wages at the rate of 
i'l 48. per week (2 Dec. on W.C.A. ivii). The only question then 
in diaput* was whether respondent was really the employer of 
claimant. It is not disputed that claimant was then wholly dis- 
abled. A motion is now made to review the weekly payments, and 
bring them to an end on the ground that claimant has recovered. 

Several medical gentlemen were examined, between whom there 
waH no substantial difierenoe of opinion. Doctors Purdy and Hector 
considered that claimant had virtually recovered, and would have 
wholly recovered had he been less timid about incurring the initial 
I-'ain which might be caused by vigorously using his toot. He has 
since done labourer's work, but it is not clear to what extent. These 
gentlemen found improving measurements of the foot, which sup- 
ported their views. Dr. Ewart to<^ substantially the same view 
of the case. Several of these gentlemen noticed that there was a 
large hard scar on the sole of the foot of a kind that sometimes 
made walking painful, THey thought that the foot would always be 
clumsier and that there might be a liability to feel pain at the end 
of a heavy day's work, but that this ought to disappear by next 
morning, and that these drawbacks ought not to affect the claimant's 
wage -earning power. McCrossan complained that when he at- 
tempted to work he felt pain in the foot. Dr. Elliot said that the 
claimant complained to him that when he did excavating- work, he 
felt pain in the scar on the sole of the foot, and that this prevented 
him from doing such work. He made no other complaint of pain 
in working than that traceable to the scar. Dr. Elliot advised 
surgical removal of the scar, and other medical witnesses agreed that 
it would eSect an improv^nent. It would disable claimant for a 
month. 

We do not think that claimant has made all possible effort by 
using his foot to assist the final cure, and we think that with a little 
more display of energy on his part he will find himself able to earn 
full wages. We think, moreover, that his remaining disability is 
due to the scar, which is superficial and might have been removed 
before now. It is, however, a consequence of the accident. 

We award that his present payments continue for five weeks from 
the Ist day of Oi^ber, and that all payments tlien cease, but that 
the declaration of liability remain in force. 



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Iviii 

Ab to the coats : This proceeding was for ttie benefit of the re- 
spondent, and though successful in bringing matters to a head it 
has not been wholly successful. We think that each party must bear 
his own coeta. 

Dated this 3i-d day of October, 1904. 

Freok. R. Ghapuan, J., President. 



In the Court of Arbitration, Wellington District (Wellington). — 
Henry Itickard, claimant, v. Albert Rickard, Benjaniin Mox- 
hani, and Ernest H. Snow, respondents. 
Mr. Herdnian for claimant; Mr. Menteath for respondents. 

JtrDQUBNT OF THE CoUBT. 

The claimant was injured by accident when felling bush on respond- 
ent Snow's land in November, 1902. 

Several defences were raised, but only one has to be oonsidered. 
llie case was partly heard in September, 1903, and for some unex- 
plained reason stood over until 6th October, 1904. Moxhtun and 
Albert Rickard entered into a contract with Snow to cut down the 
bush upon a section of land containing 67 acres at £1 5s. per acre. 
The contract was precise in its terms, and was signed by the three 
parties. In the view the Court took of the evidence, these two men 
invited claimant, who was the brother of Albert Rickard, to join 
them in carrying out the contract. He did so, and it was under- 
stood that all three were to earn the contract price, and to share it 
according to the number of days each worked. The expression 
'■ wages " was said to have been used with reference to claimant's 
remuneration, but particular eipressions like this were deposed to 
long after the event. Albert Rickard was injured early in the 
history of the contract by an accident outside the work. Then Henry 
Rickard was injured, and was obliged to stay in the hospital until 
after the felling was completed. Snow never had anything to do 
with Henry Rickard. On the completion of the work, Albert Rick- . 
ard and Moxham made up an account stowing how much eadi had 
earned, and presented this to Snow, who at their request sent each 
a cheque tor his amount. During the progress of the job wages- 
men were hired to replace the injured men, and the«e were paid 
£1 10s. per week each. The Court did not think it necessary to 
call for evidence for the defence, but called on Mr. Herdman to sup- 

Thb PnESinBUT: We are satisfied that upon the evidence for the 
claimant he does not make out a c4Se against the respondents. TTie 
casd has been very fairly put before us by counsel and fay the 
brothers Rickard as witnesses. We attach n© great importance to 



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particular ezpreBsiouB which had no importance when used, and 
which witnessea attempt f» repeat a(t«r a long lapse of time. We 
take the Bubetanoe of the matter aa it stands out upon the whole 
evidence. This appears to us to make this position clear: Albert 
Rickard and Moiham obtained this contract from Snow, and there- 
after entered into partnership or joint venture with claimant. It 
really became a family transaction. The three were partners or 
coadventurers for the purpose of carrying out the contract with 
Snow. There was no \egtd difficulty in forming such a partnership ; 
Snow's consent was not necessary. There is no substantial evidence 
that Henry Rickard agreed to become the servant of the other men. 
The clearlj ascertained facts are against this. They show that in 
point of law the two who obtained the contract agreed to hold it for 
the threcj who thus become interested in the profits. This is neces- 
sarily inconsistent with the relation of master and servant. The 
case must be dismissed. Costs will be allowed — £7 7s. and disburse- 
ments. 

Dated the 6th day of October, 1904. 

Fredk. R. Chapuam, J., President. 



CANTERBURY INDUSTRIAL DISTRICT. 

(27.) G.'^TES V. WEBB. 
In the Court of Arbitration, Canterbury District (Christchurdi). — 
Between Alfred Charles Harold Gates, claimant, and Arthur 
Henry Webb, respondent. 

Mr. Stringer for claimant; Mr. Harper for respondent. 

Judgment of the Court. 
This case was so far disposed of at the hearing that we intimated the 
result at which we bad arrived, and deferred giving reasons until 
we could state them in writing. 

The claimant, who was a carter in respondent's employ at £2 2s. 
per week, stated that while lifting heavy timber a piece turned and 
caused a wrench to his back. The seat of injury was in the lumbar 
region. These tacts were not disputed, but it was alleged that the 
incapacity had ceased before the application was filed. 

The accident happened on the 5th January, 1904, and the claim 
was filed on the 25tli July. Respondent continued to pay compensa- 
tion at the rate of £1 Is. per week tor thirteen weeks. In April re- 
spondent had (Gained a report from a medical man to IJie effect 
that the actual eSects of the injury to the back had passed off, and 
in consequence of this he discontinued the payments shortly after- 
wards. 

A large amount of medical evidence was called on hotb sides, 
whidi in the main agreed, though the witnesses disagreed as to 
certain inferences. The general effect of this evidence was tlie 

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applicant waa etill unable to work ; that the actual efiecte of the 
injury had probably passed oB, but that neuraethenia had auper- 
vcned. Medical witneaseB put the connection between this oondi- 
tioD and the accident in various ways, but generally admitted tiiat it 
was in a sense a result of the accident. Those who took the view 
roost unfavourable to the claimant said that it was really due to his 
having a money claim pending, and that he would get well a mouth 
or six weeks after this was settled. Dr. Jennings, one of the claim- 
ant's witnesses, said, " ihe present condition is largely caused by 
mental worry, all relating back to the original accident. I don't 
think he can work in his present condition as long as he has this 
worry." A case of fraud is not, in our opinion, made out. 

It is certainly hard upon the respondent that he should be held 
Ituble for results beyond the inunediat« eSects of the accident, which 
may have a duration dependent on the date of hearing of this claim. 
It may, however, be pointed out that it was open to respondent to 
take the initiative if he thought fit to do so. Had he done so soon 
after receiving the medical report in April, the case might have been 
heard in June instead of September. The case belongs to a difficult 
class, but we must hold that the claimant's condition was a ooDse- 
quence of the accident, despite the fact that it was a consequence 
which would probably only be generated in a more or less morbid 
subject. (Colder v. Caledonian Railways: 6 F. : 123 Ct. of Sess.) 
It was not, however, induced by claimant. 

We accordingly find that claimant is entitled to a declaration of 
liability, that the payments at the rate of £1 Is. per week be con- 
tinued until the 29th October, or the end of the week ending next 
after date. The payments will then wholly oease, subject to the de- 
claration of liability. The claimant will have his costs, £7 7s., 
with witnesses' expenses and disbursements to be fixed by the Clerk 
of Awards. 

Dated the 1st day of October, 1904. 

Frbde. H. Chapuan, J., President. 



(28.) DAREAGH v. JOHN DAVIDSON. 
In the Canterbury Industrial District. — In the matter of "The 
Workers' Compensation for Accidents Act, 1900"; and in the 
matt«r of an arbitration between Patrick Darragh, of Washdyke, 
labourer, claimant, and John Davidson, of Timaru, general 
carrier, respondent. 
Whereas the claimant, the said Patrick Darragh, has agreed with 
the respondent to accept the sum of £,1SS (of whi<^ the sum of £30 
has already been paid) in full satisfaction of all claims which he 
may have against the respondent in connection with the above daina : 
Now, we, having duly considered the matters submitted to ua, 
do hereby make our award as follows : — 

We order that £168, the balance of the said sum of £188, be 
l>aid and applied by the respondent as f<^lows : — 



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Ixi 

(a.) The sum of £97 lOa. to William Darragh in trust for the 
claimant for eipensea incurred by the claimant for medical attend- 
ance, hospital eiipenaes, and in ootinection with the fitting of an 
artificial foot, and the purchase and fitting-up of a bakery busineBs 
at Temuka recently purchased on behalf of the claimant. 

(6.) The sum of £10 lOs. to Messrs. Tripp and Rolkston, of 
. Timaru, solicitors for the claimant, as costs of and incidental to this 
arbitration. 

(c.) The balance, being the sum of £60, to the Public Trustee, to 
be invested by him on behalf of the said Patrick Darragh, and to be 
paid to the said Patrick Darragh when he attains the age of twenty- 
one years—- viz., on the 1th day of August, 1907, the income from 
such inrestments in the meantime to be paid to the said Patrick 
Darragh half-yearly. 

Dated this 15th day of September, 1904. 

Fredk. H. Chapuan, J., President. 



(29.) McDonald faboly ». the shaw, savill, and albion 
company (limited) (apportioning amount agreed upon 
as compensation). 

In the Court of Arbitration, Canterbury Industrial District. — In 
the matter of " The Workers' Compensation for Accidente Act, 
1900 " ; and in the matter of an arbitration between Isabella 
McDonald, of Sumner Road, Lyttelton, widow, for herself and 
her children, Eva Minnie McDonald, Maggie McDonald, George 
Thomas McDonald, and -Lily Ellen McDonald, claimants, and 
the Shaw, Savill, and Albion Company (Limited), respondents. 

Fridat, the 16th Dat or Sbptbkber, 1904. 
Upon reading the application for arbitration dated and filed herein 
Ute 3rd day of September, 1904, and upon hearing Mr. Russell of 
counsel for claimants and Mr, Stringer of counsel for respondents, 
it is ordered that the sum of £400, the amount of compensation 
agreed upon and paid by the respondents into this honourable Courts 
be apportioned and paid out as follows, that is to say : that the 
sum of £200 be paid forthwith to the claimant, Isabella McDonald, 
absolutely, and that the balance of the said sum of £400, that is to 
say the sum of £200, be paid to the Public Trustee of New Zea- 
land upon trust, to deal with the same in such manner and upon 
such terms as the said Public Trustee shall think fit, and to pay- 
the said Isabella McDonald, for the maintenance of her children, 
the said Eva Minnie McDonald, Maggie McDonald, George Thomas 
McDonald, and Lily Ellen McDonald, the aura of £3 per month 
until the said principal sum and interest thereon from time to time 
accruing be eihausted, and this Court doth further order that the 
parties hereto and the Public Trustee have liberty to apply from 
time to time for directions as they may be advised, and it is further 



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murdered that the coBts of and incidaiital to this order be fiz«d at 
-ten gnineiis, and disbursements, and be paid out of the £200 to be 
paid to- the said Isabella McDouald absolutely, as aforesaid. 
By the Court, 

H. M. Ln, 

Clerk of Awards. 



OTAGO AND SOUTHLAND INDUSTRIAL DISTRICT. 

<30.) LUCK t. THE GOLDEN CHAIN DREDGING COMPANY (LIMITED^. 
Ill the Court of Arbitration, Otago and Southland District (Dun- 

edin). — Between John Luck, claimant, and Hie Golden Chain 

Dredging Company (Limited), respondents. 

Mr. W. L. Moore for claimant; Mr. Sim for respondents. 

Jddghbnt of thb Codbt. 
The claimant, a biackemith employed on respondents' gold-mining 
dredge working at Luggate, in Central Otago, claimed compensation 
for the total loss of the sight of his right eye. There were other 
items of claim, in the nature of consequential injuries, which were 
not proved. He was employed at £i per week, and woFk«d for two 
Weeks after the accident at that rate. He was injured on the 30th 
March, 1903, the day on which he commenced to work for rSspond- 
«nts. He was engaged repairing the forge on the dred^ when 
several small pieces of steel flew ofi tbe chisel he was using and 
entered his right eye, which in the end was destroyed. 

The defences raised were («) want of notice and (6) that the 
claim was not made within three months after the accident. 

Formal notice of the accident was not given until the 13th July, 
1903, but other circumstances were relied on as rendering this un- 
neoessary. On the SOtJi April, Kitto, the dredgemaster, wrote 
oEGcially to Mr. MacLean, the secretary of the company, detailii^ 
th* accident and the treatment of claimant by a local medical man. 
On the 2nd May he signed and forwarded to the company a f^-m filled 
up with particulars of tlie accident addressed to the Commercial 
Union Assurance Company (Limited), headed " Employers' Acci- 
dent Compensation Claim." This form had been sent up to Mm 
from Dunedin by the Secretary. This claim states that one of the 
dredge hands was present when the accident happened, and it is 
manifest that the dredgemaster heard of it in the ordinary course 
on the same day. We do not think that it is essential that the notiee 
should be given by the claimant himself. The object of the notice 
of accident, which has to be given " as soon as praoticaUe- after 
the happaning thereof, and before the worker has voluntarily left 
the empioymeDt in which he was injured," is to give the employer » 
fair opportunity of inquiring into the matter. It ii 



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oauee for dispensing with the notice under the powers conferred 
upon the Court that tho aocident hapened virtuallj in the presence 
of a responsible official of the companj', who reported it to the com- 
pany in due course, and that the company has not been prejudiced 
by anj- delaj. The circumstanoes here would amply justify the 
Cburt in taking this course, even if it were obliged to say that the 
notice sent by the dred^emaster was not sent " as soon aa practic- 
able." The real defence, however, was that no claim had been made 
within three montha after the oocurrenoe of the accident. We can 
find no evidence of a claim having been made, and we have therefore 
to investigate the history of the case with the object of determining 
whether the respondent has or has oot disentitled himself to raise 
this defence. 

The onus is upon the claimant to make out that the reason of his 
failure to make a claim entitles bim to succeed despite that failure. 
We think that in Teal v. Stevens (3, Decisions under Workers' Com- 
pensation Act, xxxv) we correctly laid down the rule to be observed 
in determining this question, " Equitable circumstances, to be 
available as a bar to the aetting-up of this defence, must be such as 
have, prior to the expiry of the time for making the claim, lulled 
the daimant into a sense of security, and bo induced' him not to 
elaim compensation." It is important to add that these circum- 
iitances must arise out of the acts of the respondent to be available 
against him. 

It is suggested that the respondents are within this rule estopped 
from setting up thia defence, and in support of this suggestion the 
following factt are relied upon : The letter from the dredgemaster 
to the secretary, dat«d the 20th April, contained the following 
passage: " We went down on Saturday, 18th April, to see the doctor 
■•gain. He told Luck he would have to go to Dunedin to see Dr. 
Ferguson, so I told Luck to call on you and you can report it tO' the 
insurance company, as he can't aSord to pay all the eipenses him- 
self." Claimant went to Dunedin and on the 21at April saw Mr. 
MacLean, the company's secretary. Apparently in claimant's pre- 
sence, Mr. MacLean telephoned the insurance company informing 
them of the occurrence. Luck says that he told Mr. MacLean that 
Dr. Ferguson had advised him to ask Mr. MaoLean to claim half his 
wages, but he did not say from whom. He went into the hospital 
and remained there until about the 30th June, when he called on Mr. 
MacLean again and asked him if there was any money from the 
insurance. Mr. Macl^ean replied, " Yes, here is a cheque." It was 
a crossed cheque for £30, and Luck and his wife having no banking 
account went to the OMnpany to get it cashed. The company took the 
cheque and sent the money down to the claimant's lodgings. Some 
time before this a Mr. Houston, a law clerk, as a friendly act to 
assist Mrs. Luck, but without communicating with Luck, called on 
Mr. MacLean, and spoke about getting an advance. He says that 
he spoke to Mr. Maclioan about the notice. " I asked him if he 
had received proper notice, as if he had not received proper notice 



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1 would advise the Lucks to immediately employ a solicitor. He told 
me in reply that he had got notice, that he had already informed the 
ineuraDoe company, and not to employ a solicitor for them as he 
would get as much out of the inauranoe ocmpany for the Lucks as a 
solicitor could." He says he saw Mr. MacLean several times. " This 
respresents the result of several conversations. The cheque for £20 
ttlso represented the result of conversations. I understood that it 
represented ten weeks' half -pay. He adds, " He said as much as 
that it was not the aSair of his company so much as of the insurance 
company. That it didn't affect them." MacLean on the 17th June 
wrote Mrs. Luck, " I am sorry I missed you this morning when I 
was down at the insurance conipany about your husband. The 
manager of the Commercial Union Company informs me that he has 
not as yet heard from his head office, but expects to do so very shortly. 
As soon as I get a cheque from the insurance company you shall 
have it. Please let me know as soon as possible how your husband 
is keeping. Kitto and others wish to know." Macljean said that 
he always took up the stand that it had nothing to do with his com- 
pany : that it was really a matter between Luck and the insurance 
company. He says that the matter never came before the directors 
ft the dredging company, and that he never had authority to waive 
anything. He disputes the statement that he said he could get as 
much from the insurance company aa any solicitor, but the state- 
ment is immaterial, and something of the sort may well have been 
said and forgotten. None of the conversations deposed to by Hous- 
ton seem to have left much impression on MacLean, We are satisfied 
with the bona fdee of both these witnesses, but the result of the whole 
o( the proceedings is to show that MacLean did not consider that he 
was acting in defence of the company nor id any way in its interest, 
but that he was doing his best for Luck. We cannot therefore treat 
his conversations with Luck and Houston as acts done in furtherance 
of his duty as secretary to the company, and doubt whether they 
would advance matters were they so treated. 

The question of the effect of the payment by or through the in- 
surance company remains to be considered. A payment by an 
employer has to be considered together with the accompanying oir- 
c\imstances in order that it may be determined whether they together 
amount to evidence of an admission of liability, and an agreement 
to pay compensation within section 8 of the Act, In Kendall v. 
Hill's Dry Docks and Engineering Company (Limited) (1900: 

2 Q.B. 2i5), weekly payments through an insurance company were 
made for nearly a year, and a receipt given "on account of com- 
pensation which may be or become due to me under the Workers' 
Compensation Act," &e. The Court of Appeal held that this did 
not affect the right of the company to set up the defence of want of 
claim. A. L. Smith, L.J., in giving the judgment of the Court, 
says, " Suppose that the appellants had not been insured against 
accidents to their men, and that it had been proved that they had 
paid the respondent £1 a week; would that fact be any evidence 



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o( a vaiver on their part of the olaira for oompensation beii^ nuide 
within six months? Uodoubtedl}' th« mere f«ct tli&t such pajimeiits 
had been made would not be evidence of waiver. Here the Appel- 
lants were insured, and what happened was this: ahJiough they 
received no notice of aooident or of intention to claim cempenBation, 
tbey sent to tiie iesurance ofiBoe particulars of the accident, in 
■which tbey said tliat the man's wages were £2 per week. What did 
the insarance company do on receiving these particulars I They did 
not leave the r^pondent without any money to go on with ; they sent 
him .£1 per week on account of any compensation that might be or 
become due to him: in bo doing they stood in the shoes of the em- 
ployers for whom they paid the money," He goes on to put the 
test. " Wliere is there any evidence in the pi-*,'sei(t case that the 
parties agreed that there was a liability on the part of the employers 
to pay compensation J " The facts of that case were very like those 
in this case. It distinguishes the case of Wright v. John Bagnall 
and Sons (Limited) (1900: 2 Q.B. 240), where the circumstances 
showed in the opinion of the Court that there was such an agreement, 
a conclusion of fact similar to that at which the Court arrived in 
the recent case of Shields v. John Mill and Co., where the conclusion, 
however, was not material to the decision of the case. 

The question of the efiect of payment, coupled with other cir- 
cumstances, was fully dealt with by this Coort (Cooper, J., Presi- 
dent) in Stevens v. The Kauri Timber Company (5 Gaz. L.R. 255: 
2 Decisions under C. Act, page vii, 5th February, 1903), where the 
acknowledgment of liability was held proved, and the whole of the 
authorities were reviewed, including the earlier case in this Court 
of Barrie v. The New Zealand Shipping Company (5 Gaz. L.R. 21 : 
] Decision under Workers' Compensation Act 34). It had also been 
dealt with in the earlier case of Hamilton v. New Zealand Crown 
Mines Company (5 Gaz. L.R. 182: 2 Dec. under C. Act 11), where 
the payments were accompanied by circumstances showing oleariy 
tliat the right to compensation had been agreed to ; and in Teal v. 
Stevens, where the sums alleged to be paid were given as a present. 
When Wright v. Bagnall and Kendall v. Hill's Dry Docks Company - 
Were decided, it had recently been decided bv the Conrt of Appeal 
(Powell V. Main Colliery Company: 1900, 2 Q.B. 145) that the 
claim was the proceeding filed in the Court, but the decision of the 
House of Lords reversing that decision and holding (Powell v. Main 
Colliery Company: 1900, A.C. 366) that it is something apart from 
this, does not affect the authority of these cases, as the period «f 
limitation in either view runs from the date of the accident to the 
making of the claim, which is a statutory stop, however informal it 
may be. 

Upon these grounds we oorae to the oonolnsion that this c««e nraat 
be diemiased. Without expressing any opinion upon the actubl 
merits of the case, which were further in controversy, as the claim- 
ant had subsequently oUained employment at a fair rate t>f «■ 
munecation, while his prospects with this company were limited by 



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the fact that it went into liquidation in July, we must expreaa our 
r^ret at finding that a considerable number of cases fail on thiu 
ground. Claimants do not appear to be properly informed ae to 
tlieir rights, and appear to allow matters to run on, letting time Blip 
past, under the impression that these depend on the oiroumBtanoes 
tliat the employer is insured. In this case, not only the claimant 
but also Mr. MacLean were evidently under this impression. Sooie 
simple method ought to be adopted of informing workmen in fac- 
tories, and other fixed places where work is done, of the desirability 
of having notice of accident and a proper claim sent in promptly. 

Application dismissed, with costs £7 Is., witnesses' expenses and 
disbursements to be fixed by the Clerk of Awards. 

Dated this Ist day of October, 1904. 

Fbede. R. Chafuan, J., President. 



(31.) DUFF "■ GRIMWOOD AND WILLIAMS. 

In the Court of Arbitration, Otago and Southland District (Inver- 
cargill). — David Dufi, claimant, v. Robert Grimwood, Frank 
Henry Williams, and William Forbes Williams, respondents. 
Mr. Mofiatt for the claimant; Mr. R. W. Hall for Grimwood; 

Mr. Rattray for Frank Henry Williams; Mr. H. Maodonald for 

WiUiam Forbes Williams. 

Judgment op thb Court (6th and 7th Sept«nber, 1904). 
Tbs case was disposed of at the hearing. The claimant had been 
badly hurt through having fallen while carrying flai up a slippery 
plank into the scutching- mill. He was on the way towards recovery, 
but was still quite unable to work. Medical evidence supported his 
, own statement. Various defences were raised, the chief of which 
were disclaimer by F. H. Williams and W. Forbes Williams and 
denial of liability by Grimwood. 

Claimant was a labourer employed at the mill by the hour, and, 
as found by the Court after investigation of pay-sheets and other 
evidence, hie average weekly earnings between December and May 
were £1 6s. per week. Grimwood and F. W. Williams were in part- 
nership as flax-millers under the style of " Grimwood and Wil- 
liams." W. Forbes Williams was a sleeping partner. F. H. Wil- 
liams lived near the mill, and managed it. On the 2nd May a 
memorandum of dissolution was signed by Grimwood and F. H. 
Williams, and this was duly advertised on the 4th May. On the 
2hd May Grimwood's solicitor wrote asking F. H. Williams to take 
charge of the mill for Grimwood. On 5th May claimant came to 
work as usual, and in the oourse of the day met with the accident. 



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At the conclusiou ot the claimant's evidence as to the principal 
factd, Mr. Mofftttt admitted that he could sot succeed againat F. W. 
Williams, as the diasolution had been duly advertised. He stated, 
however, th&t as W. Forbes Williams was not mentioned in the notice 
of dissolution, he proposed to cal! evidence to show that after the 
date of the accideut this respondent had, in an arbitration pro- 
ceeding in connecttoa with the dissolution, claimed that the dis- 
eolutton was ineffectual so far as he was concerned, ae he had not 
concurred in it. He admitted that the claimant never heard of 
his (respondent's) connection with the firm until long after the 
accident. 

Mr. Hall admitted that he could not further defend the case on 
the merits, so far as Grimwood was concerned. 

The hearing stood over until the next day, Wedneedaj, the 7th 
September. On resuming — Chaficah, J. (President), stated that he 
had considered the evidence proposed to be adduced against W, 
Forbes Williams, and that, giving the greatest possible effect to it, 
siich evidence oould not n[iake a case against this respondent. He 
was a sleeping partner, and was never held out as a partner; and 
when a sleeping partner retired there was no occasion to proclaim 
his retirement in order to relieve him ot future liability. Thus, 
Grimwood and F. H. Williams were capable of dissolving the part- 
nership between them, and this put an end to the partnership in 
toto. Up to this point the daily hiring of labour by F. H. Williams 
was in virtue of his plenary agency as a partner, but on the.Snd 
May that ceased, and thereafter he acted under a totally different 
authority — viz., the written authorisation of Grimwood requesting 
him to take charge, which in no way bound W. Forbes Williams. 
From no point of liew, therefore, oould the latter respondent be 
bound : be did not, in fact, hire the claimant on the |lay in question. 
These two respondents must be discharged from the proceedings, 
with £7 7h. costs to each, together with witnesses' expenses and dJs- 
bursennents to be fiied by the Clerk of Awards. As against Grim- 
wood the following award was made: A declaration of liability is 
made. This respondent is ordered to pay to the-claimant the weekly 
Bum of 13a. until such payment is redeemed, ended, or diminished 
in accordance with the provisions of this Act. The payments will 
commence as from the 5th May, 1904, credit being given for any 
sum already paid. This respondent will pay the claimant £,\f> \?i». 
for his costs, tt^ther with witnesses' expenses and disbursements to 
be fixed bv the Clerk of Awards. 



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(32.) KEITH V. SPAIN. 
Id the Court ot Arbitration, Otogo and Southland District (Dun- 
edin). — Robert Keith, olaimant, ii. Tbamas Spain, respondent. 
Mr, A, R. Barclay for the claimant. 

JuooHENT OF THE CocRT (I2th September, 1904). 
This caae was disposed of at the hearing. Claimant had broken his 
arm in respondent's service. No defence was filed. Claimant 
stated that his arm was nearly well and improving rapidly, but not 
strong yet. Dr. Buck. House Surgeon at the Dunedin Hospital, 
suid that the arm should have been well in (ight or ten weeks from 
Ihe date of the accident, but it was retarded. He considered that it 
wouid have completely recovered at an early date. 

The Court (Chapman, J., President) considered that the evidence 
showed a prospect of an early recovery, and that a declaration of 
liability was unnecessary. RespondeDt's wages were £1 28. 6d. per 
week " and found." The award was for twelve weeks at ISs. 3d., 
being half the weekly wage in respondent's service, together with 
half the value of respondent's board at the rate ruling in the 
district. 



CASES SETTI.ED. 



(S3,) Wkllimotok Inddbtrial Dibtbict, 
The following cases have been settled out of Court : Keeble v. Mil! 
and Co. ; Holford v. McEwan; Warrington v. Bartholomew. 

Collier V. Hopkins: Case settled, application for costs only; 
£2 2s. costs allowed by Court. 

Roberts r. Campbell and another: Declaration by Court of lia- 
bility, with £3 3s. costs. 

(84.) Otaqo iNn Southland Industeial Dibthict. 
The following case has been settled out of Court : Kerr )■. The Night- 
caps Coal Company. 



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FILED IN DECEMBER. 



OTAGO AND SOUTHLAND INDUSTRIAL DISTRICT. 



(35.) NAPIER 1'. THE KING. 

In the Court of Arbitration, Otago and Southland District (Dun- 
edin). — John Napier, claimant, v. His Majesty the King, re- 
spondent. 
Mr. D. Stewart for claimant; Mr. J. F. M. Fraser, Crown 

Solicitor, for respondent. 

JunOUBNT OF THfl CODBT. 

The claiiimnt is the father and administrator of John Napier, a 
railway bridgeman in the service of the Railway Department, who 
was drowned on the I5th August, 1903, by an accident arising out 
of and in th« course of his employment. The father claimed as a 
partial dependant. No other question arose than the principle on 
which compensation should be assessed and the amount of such 
oompsensation . It was admitted that some allowance should be 
made for funeral expenses as decided in Bevan v. Crawshaw (1902, 
1 K.B. 25; 85 L.T. 496; 71 L.J. (1902) 50; 4 W.C.C. UO). The 
claim put forward on this head was ercesaive. We have considered 
it, and allowed tt^ subject to a reasonable degree to enter into the 
computation of compensation. The nature of the dependence may 
b? thus briefly stated: The claimant was a farmer in a very small 
way, owning a freehold farm subject to a mortgage, which he showed 
yielded with its stock, after paying expenses and interest on a 
mortgage, a profit of about £30 a year, with dwellinghouse worth 
probably about 7s. per week. He was somewhat advanced in years, 
and his wife was living. They had several children. The sons, with 
ouc exception, were in employment in places beyond Otago, and con- 
tributed nothing towards claimant's support, and it was not shown 
that they were able to contribute. The remaining son, aged seven- 
teen, lived at home, and assisted in managing the place. There was 
a grown-up daughter, who was too delicate tc go to service, and two 
other daughters, aged fourteen and eleven respectively. We con- 
clude that the general result of the evidence showed that the claimant 
was with respect to income somewhat in the position of a labourer 
earning 13s. per week with a house to live in. This sum will not 



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support a labourer, but we think that a labourer in the Waikouaiti 
district with r^uiar employmeat, aay, on road-mending, would be 
paid about £1 19b, per week, or, if provided with a aimilar houae 
to that of claimant, about £1 ISa. On this footing claimant re- 
quired about £1 per week, not to keep him in as comfortable a 
position as that in which he Found himself, but to keep him in about 
tlie same position of a labourer in steady employment. He was, 
however, in a better position, and was, in fact, soniething more than 
a labourer. The deceased earned on the average in the service of the 
Department £2 Ss. 6d. per week, and, being allowed to live in a 
travelling-hut on the railway-line, he had no rent to pay. As his 
parents supplied him wim provisions, he had only occasionally to 
make small purchases. He had no expensive tastes or habits, and 
seems to have spared all superfluous expense in order to give sub- 
stantially the whole of his wages to his parents. His provisions 
would proiiably cost his parents about 10s. per week. In the result, 
hie contributions to the upkeep of his father's home was probably 
not far short of £1 lOs. per week. We are not called upon t« look 
exclusively eitlier at the estimated requirements of the case, or at 
the estimate'! contribution, and we do not overlook the fact that the 
contribution, in fact, enabled the claimant to pay some back debts 
and to save a small sum. What we have to consider is the whole of 
the relevant facts as bearing upon the measure of compensation laid 
down by the Act. The General Manager of Railways oSered £100 
by way of compensation, together with £32 lis. 7d., representing 
the whole sum claimed for expenses in connection with the death, 
funeral, attendance at inquest, 4c. The £100 was stated to be the 
customary sum paid in such cases. The General Manager's letter 
did not suggest that it was based upon any particular computation, 
and we think that the letter shows that the Department did hot i>p- 
preciate the extent to which the deceased's wages contributed to his 
parents' support. In this proceeding the Department simply sub- 
mits to an assessment of compensation. Our duty is to find and 
assess " such sum . . , , as may be determined on under this 
Act to be reasonable and proportionate to the loss or damage suffered 
by the said dependants." 

The statute does not profess to aSord any other giiide to the 
amount than that quoted, save a maximum limit with which we are 
not presently concerned ; but it must be remembered that the con- 
tribution must have reference to the life of the dependant. We have 
considered the whole question very much as a jury would be expected 
to consider it, in the light of the facts and figures quoted, the age, 
condition, and family surroundings of the claimant, and of the 
possibility of deceased marrv.ing and reducing the contribution — 
and in the light of the case' of Simmons v. White Bros. (68 L.J. 
Q,B.D, 507 : 1899 1 Q.B. 1005) and Main Colliery Companv v. 
Davies (69 L.J, Q.B.D. T55 ; 1900 A.C. 358), and the decisions of 
this Court in Reid v. Lady Charlton Gold-dredging Company (1 De- 
cisinna W.A, Act 10) and McClusky i.. The Success Gold-dredging 



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Company (Ibid. 25). In the result we think that a fair amouot to 
be allowed is £260, which aura we award to the claimant, with costa 
£16 158., witnesses' expenses and disbursements to be fixed by the 
Clerk of Awards. 

Dated the 10th day of November, 1904. 

Frbds. R. Chapman, J., President 



< ) WILLIAMS V. THE MAYOR, COUNCILLORS. AND CITIZENS OF 

DUNEDIN. 
Ill the Court of Arbitration, Otago and Southland District (Dun- 
edin).' — John Williams, claimant, v. The Mayor, Councillors, and 
Citizens of the City o! Dunedin, respondents. 
Mr. Barclay tor the claimant; Mr. Sim and Mr. J. R. Sinclair 
for the respondents. 

Judgment of the Codrt. 
Ci.AiUANT, who was a stonemasoQ, was employed dressing pitchers 
ut respondents' quarry at Woodhaugh, to be used in the construction 
of tramway-tracks, when he received a blow frwn a splinter of stone, 
by which ultimately he lost an eye. Claimant was employed at 
Is. 6d. per hour, and was aubject to be discharged at any time, and 
might leave at any time. He commenced work on Tuesday, the 4th 
August, 1903, and worked until Friday, the 14th, when he was 
injured at the close of the day. It was well known to him and all 
the other employees that the Corporation pay-week or week of work 
begins on the Thursday and ends on the Wednesday night. Claim- 
ant did not work on Saturday, the 5th, but. went on Friday, the 
customary pay-day, and got his cheque to the end of the pay-week. 
He received the other two days' pay after he came out of the hospital. 
During the whole period, working eight or eight hours and a 
halt per week-day, and four hours on Saturdays, claimant earned 
£.5 16s. 3d. Had he worked that Saturday he would have earned 
68. more. Claimant is a very old man, and was said to be very slow, 
turning out only about half the proper quantity of pitchers, and the 
assistant engineer, Bowman, decided to dispense with his services. 
He says that after looking at claimant's work on Friday, he gave 
directions to the foreman quarryman to dismiss him " at the end ot 
the week," or " at the end of the calendar week," by which he meant 
on the following day, not on the following Wednesday. Norris, 
the foreman quarryman, says that he totd claimant that his services 
were no longer required after Saturday. Claimant denied this, 
but he was so extremely deaf that it is quit« possible that it was not 
made clear to him. We think, however, that this is immaterial, 
because, in order to elucidate the question whether the claimant. 



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thuB casually employed, had a proflpect of continuous employment, 
it is unneoessary to do more than ascertain the intentton of bi« 
employer, if he had actually fermed any, and we think that there is 
sufficient evidence to show that claimant had no prospect of employ- 
ment beyond Saturday, the loth. On that day he called at 12.30 
p.m. at the respondent's pay-offioe for an order for the two days' 
pay, which was given to him by Norris. Norris knew nothing of an 
accident. He said that claimant had a handkerchief wiping his eye, 
but he always had a sore eye. In these circumstances it was not 
unnatural for Norris to assume that the employment closed in oon- 
sequenoe of the intimation given by him to claimant. We think, 
however, that as there was a prospect of claimant working for four 
hours on Saturday, 6s. ougnt for the purpose of computation to be 
added to the sum actually earned by him. 

The question in controversy was how the average weekly earnings 
were to be computed. There was no suggestion that the claimant 
had recovered, or was entitled to less than half his average weekly 
earnings. The claimant had worked in two calendar weeks; the 
respondents contended that his total eacnings ought to be divided 
by three, as he had worked in three Corporation pay-weeks ; the 
claimant's counael contended that the time worked must be taken to 
be a week and a half, giving as the weekly average the sum earned 
in six days. This involved a discussion as to the eflect of Lysons v. 
Knowles (1901 A.C. 79), and a consideration of the applicability to 
this case of the principle of Public Trustee v. Zimmerman (6 Gaz. 
L.R. 231), decided on the 23rd January, 1904. In that case we 
decided that when a man employed by the hour had worked first a 
broken week, then twenty-one whole weeks, and then a broken week 
if, which he was kilted, and there were substantial reasons for think- 
ing that, but for his death, he would have worked to the end of the 
week, the proper way to compute his average weekly earnings was 
to reject the second broken week, deduct form the total earnings 
the sum earned in that week, and divide the sum remaining by 
22. This rule was adopted as substantially equivalent to the alterna- 
tive of treating the last broken week as a hypothetical week, ertend- 
ing it fo the end, and then dividing the whole by 23. The former 
alternative was preferred, however, as eliminating a source of error 
or uncertainty due to the fact that regular hours were not worked, 
and the value of the hypothetical week could only be computed by 
a somewhat elaborate method, which could not be free from minute 
error. In the Public Trustee v. Zimmerman we expressed a slight 
doubt as to whether we ought not to have rejected the first broken 
week and the sum earned during it as well, and divided what re- 
mained by 21. We are now called upon to deal with a somewhat 
similar, but not exactly similar question. In that case the matter 
which we left in doubt was unimportant. In this caee a similar 
question beoomee important, because of the shortness of the total 
time worked, and the consequent smallness of the total earnings. 
We think that the question now to be determined is in a iiMasure 



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covered bj' authority, and that a proper applioation of the rulee 
reoognieed in Ayres v. Buckeridge, and the cases deeJded with it 
(1902 1 K.B. 57), and of the principle of the case of Watters v. 
Clover, Clayton, and Co. (18 Times L,R. 60; 4 W.C.C. 138), aBsists 
UB to settle' it. Thie last case proceeds upon the assumption that 
the Court is not neoesaarily bound to the trade week, but is entitled 
to aaoertftin the aver age weekly earnings by reference to what may be 
termed the cemmon-senae standard. There, the claimant worked tor 
six coDtinuouB daya, and was then injured. The trade we^ began 
on Friday morning and ended on Thursday night, Saturday being 
pay-day. Claimant waa on Saturday paid 14a. for two days' work. 
For the other four days he received £1 ISs. 6d., some of which repre- 
sented overtime. It waa contended that the total earnings, £2 
12a. 6d., muat be divided by 2, as claimant had, worked in two 
factory weeka, but the Court of Appeal refused to adopt this oonten- 
tion, holding that there was material from which the Court miglif 
deduce an iivert4^ from the six daya worked, as there was nothing 
to show that the second week might not have been completed. Col- 
lins, M.R., says, " It made no tfifferenoe whether the six daj^ were 
the whole of one week or whether they were parts of two weeks. 
Neither waa it material for thia purpose whether the two weeks, if 
there were two weeks, were trade weeks or calendar weeks." Her-e, as 
we have said, there would be nothing to juatity a conclusion that tlie 
work would have continued beyond the Saturday, but we think that 
the passage quoted justifies us in taking a week of six daj-s as our 
factor, and the remainder of the time worked as part of another, thus 
treating the money earned as earned in two weeks. Mr. Barclay 
asked us to disregard the broken week, and to treat a whole week 
us ascertaining the claimant's average. To do so would be to go 
beyond either the English or the Scotoh deciaione, and to disregard 
the authority of Lysona v. Knowles. If the claimant had been 
actually engaged for a definite period equivalent to that worked 
together with the following Saturday, a fair view of his average 
weekly earnings would have been to treat the wh<rfe sum earned as 
having been earned in two weeka, irrespective of any particular mode ■ 
of interpreting the expression "week." We do not see any good 
reason why this mode of computation should not be used here. 

This view is not in accordance with the Sootoh decisions, which 
rigidly adhere to the trade week (Fleming v. Lochgelly Iron and 
Coal Company (Limited) : 4 F. Ct. of Sess. 890), and equally rigidly 
iidhere to a particular interpretation of the judgment and order in 
Lysona v. Knowles, which excludes the idea of a hypothetical week 
(Grewar v. Caledonian Railway Company: 4 F. Ct. of Sess. 895: 
.19 Sc. L.R. 639). (McCue v. Barclay, Curie, and Co. (Limited): 
Ibid. 909.) The rule thua laid down has been conaiatently followed 
by the Scotoh Courts, while the rule adopted in England has been 
as consistently followed there in Ayrea v. Buckeridge; Wheale v. 
Rhymney Iron Company; Jones v. Rhymney Iron Company (1902 
1 K.B. 67), which appear to ua to give direct aupport to what we 



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Ixxiv 

propose to decide in this case. Id one of the latest cases in the 
Court of Sessions (Campbell v. Fife Coal Company ; 5 F. Ct. of Sess. 
170), the rule adopted in S<«tlaud ie reaffirmed on the authority of 
Fleming i'. Lochgeltj- Iron and Coal Company; tliere, doubts were 
expressed by some members of the Court a« to Fleming's case, but, 
us it was a considered decision of the First Diriaion, it was authori- 
tative. Mr. Lord Justice Clerk said, "It is quite plain that the 
decision in that case was arrived at after a full discussion, and, 
>kS it fixes a rule, it is desirable that there should be uniformity. 
In these circumstances 1 see no reason whatever for going contrary 
to that decision.'' Lord Trayner, aft«r having decided differently 
in the CadMw Coal Company case (1900 3 F. Ct. of Sess. 72), de- 
cided before Fleming's case, says, " I have not changed the opinion 
eipressed formerly, but, in deference to the decision of the First 
Division, I am willing to surrender that opinion. That decision 
fixes a rule, and it is materia! that a rule should be fixed, while it 
is not so material what that rule is." Lord Moncrieff also eipreseea 
some doubt as to Fleming's case, and adds, " But that being a dis- 
tinct decision on the point, I am not prepared to decide differently." 
We are not absolutely bound by the rule of any other Court, but 
we have thought fit to quote these espressions as showing that these 
eminent Judges fully appreciate how open a question it is, and, 
while not bound by the decisions of these Courts, we consider it very 
desirable that we should abide by such a rule as to us aeeme most 
nearly to express the intention of our Legislature, and for this some- 
what lengthy discussion, this conflict of opinion and our desire to 
arrive at a consistent rule is our justification. On the whole, we 
prefer the more elastic rule adopted by the English Courts. Either 
is liable to lead to results which may appear capricious, but this 
tendency is reduced to a minimum by reference to the authorities 
on which we rely. The question is one of adherence to the decision 
of the House of Lords in Lysons v. Knowles, to which all the Courts 
profess to adhere. As that was a case in which two isolated days 
were worked under conditions showing that they represented not 
merely casual, but precarious employment (as in Reddie v. Mayor, 
.tc, of Balcluthar 1 Dee. W.C. Act. 13), we do not think that we 
lire in any way departing from the order in that case, and that 
we are acting in accordance with the reasonings of their 
Ixirdships, as expressed in the judgment with reference to the 
expression " average," in holding, as we now hold — namely, 
lhat the total sum earned was earned in a week of sis days, 
and a seooii'l week to be treated as a hypothetical week, in 
which five Anvs would, but for the accident, have been worked, and 
tliat in this view the sum of £6 2a. 3d. must be divided by 2, that 
the average weekly earnings are thus ascertained to be £3 Is. IJd., 
upon which footing we award the claimant the weekly sum of £1 
10s. 6d., to be paid to him (subject to payments made) from the date 
of the accident until the amount is redeemed, ended, or diminished 
in accordance with the provisions of the Act. We award the claim- 



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ant £7 7b. oosta, with witnesses' eipensea and dlebur semen tg to be 
Used by the Clerk of Awards. 

Dated the 10th day of November, 1901. 

Frbdk. R. Chaphav, J., Presideat. 



(37.) BE WORKERS' COMPENSATION FOR ACCIDENTS. 
Claim by an employer against a person who injured his employee 

(Claim upheld.) 
The following decision was given in the Supreme Court on the 
14th June, 1904, by Mr. Justice Williams (N.Z.L.R,, Vol. iiiii, 
p. 746):- 

SMAILL 0. ALEXANDER. 
Matltr and Servant — Injurj/ to Servant — Loss oj Service — Damages — Medical Ex- 
la an action by a master againat a peieon who has injured his servant the 
eipensea of medicid att«ndanoe on the servant may be recovered as part of the 
damajE^ for loss of service. 
Appeal from the decision of George Cruickahank, Esq., S.M., at 
Gore. 

On a counterclaim for damages against the respondent for loss 
of service by reason of the respondent assaulting and grievously 
injuring appellant's servant to Bueh an extent that he was unfit to 
attend to his occupation, and for expenses incurred by the appellant 
in procuring surgical assistance for his servant, the M^istrate gave 
judgment for £3 for loss of service, but refused to allow the expenses 
in connection with the surgical aasistanee. From this decision the 
appellant now appealed. 
Sim for the appellant: — 

The judgment of the Magistrate is based on the fact that there 
is no legal obligation on the master to procure medical attendance for 
his servant. There is no authority for such a proposition. Diion 
r. Beli (1 Stark 287) and Flemington v. Smithers (2 C. & P. 292) 
are cases where the master was held to be entitled to reoover : Mayne 
on Damages (6th ed. 113); Smith's Master and Servant (5th ed. 
144); Eversley on Domestic Relations (2nd ed. 862). The American 
authorities on the subject take the same view : Wood's Law of Master 
and Servant (2nd ed. 449); Sedgwick on the Measure of Damages 
(Tth ed. Vol ii 549). In HodsoII v. Stallebraes (11 A. & E. 301) 
the master was held entitled to reoover prospective damages. The 
Magistrate has misconstrued a passage in Pollock on Torts (6th ed. 
64). The question here is not one of measure of damages, but of 
whether an action will lie at all. 



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[WiLLiAua, J. : la the maBter bouod to give th« serTant notioe ip 
order to mitigate damagee I] 

No; it is the inaater'B duty to mitigate dam&gea by adopting 
treatment such a» appellant has done in this case. 

Neave, for the respondent;- — 

The master is not liable to pay for medical attendance and com- 
forts unless under some contract: Wennall v. Adney (3 B. k P. 
247, 263); Reg. i;. Smith (8 C. k P. 163). In aU the cases quoted 
as authorities for the appellant the relationship is that of parent 
and child. In Alton v. The Midland Railway Company (34 L.J., 
C.P. 292, 396) it is doubted whether a master can even recover for 
loss of service. See also Hall v. Hollander (4 B. k C. 660). 

Sim, in reply: — 

It is true that the authorities are all «ases of parent and child, 
but even in these cases the parent can only recover on the ground of 
Joss of service: Pollock on Torts (5th ed. 223). 

Cur. adv. vvit. 

Williams, .T. : If an action by a master against a man for in- 
juring his servant will lie at all I see no reason why, if the master 
pays the doctor's bill, he should not be able to recover it from the 
wrongdoer as part of the damages. That he can recover it is laid 
down in every text-book that deals with the subject. It was because 
of the loss of service, and not because the person injured was the 
son of the plaintiff, that the damages were given in Dixon v. Bell 
(1 Stark 287). The ordinary action for seduction is founded on 
loss of service. The action can be brought by a parent although the 
daughter was a married woman separated from her husband ; Harper 
V. Lufkin (7 B. k C. 387). It can be brought where the daughter 
is over twenty-one, where she is an adopted child only, and by a 
master who is no relation to the servant seduced: Forbes v. Wilson 
(3 Peake N.P. 77). In none of these cases would there be any legal 
liability upon the master to supply medical attendance to the girl 
seduced, yet there can be no doubt that in every action tor seduc- 
tion the espenses of such attendance are recoverable, and they are 
recoverable on the ground that the relation of master and servant 
existed between the plaintiff and the girl. The test whether such 
damages can be recovered is not whether the master is l^ally bound 
as between himself and his servant to find medical attendance for 
liis servant, but whether the incurring by the master of the liability 
is the natural and reasonable result of the defendant's act — that is, 
that it is such a consequence as in the ordinary course of things 
would flow from the act: Mayne on Damages (7th ed. 49). Now, if 
a man grievously injures one whom he knows to be another man's 
servant, so as to render him unable to render service, he does a wrong 
to the master as well as to the servant. That a doctor will be sent 
for by one of the parties wronged is a reasonable result of the act 
of the wrongdoer. The employer maj not be legally bound to send 



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for niedicalattendanoe, but it is quite natural and reaeonabU that 
he should do so. The employer has a right U> the services of the 
injured man, and in his own intereBts, and apart from any motives 
of humanity, he may be expected to do what he can to regain those 
services as soon as possible. If he takes reasonable steps to regain 
those services he can recover the cost from the wrongdoer, and to 
obtain medical attendance in the case of serious injury is a reason- 
tible 8t«p. The master who i^ends for the doctor to att«nd his ser- 
viint cannot, in the absence of special contract, deduct the amount he 
pays the doctor from the servant's wages: Sellen v. Norman (4 C. 
A P. 80). If the master in the present case could not recover, it 
would follow that the wrongdoer would not be liable to anybodyfor 
the costs of medical attendance on the man he had injured. The 
injured man could not recover it, because he had never paid it. 
and had never become liable for it. In my opinion the plaintiff by 
counterclaim can recover the sums for medical attendance and 
medicine tor which he has become responsible, and is entitled to 
judgment for £47 138. 6d., the admitted amount. Judgment will 
bo entered for that amount, in addition to the .£3 given by the 
Magistrate; and .£0 6s., costs of this appeal, will be paid by the 
respondent. 

Solicitor for the appellant: E. R. Bowler (Gore). 

Solicitor for the respondent: J. S. Neave (Giwe). 



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FILED IN JANUARY, 1905. 



WELLINGTON INDUSTRIAL DISTRICT. 



<38.) MORRIS AND WIFE v. WILLIAMS AND BEETHAM. McHAmE AND 
CO., C. E. DANIELL, HENRY GOLDER. WILLIAM THOMAS, AND 
FRANK PRICE. 

In the Court of Arbitration, Wellington District (MaBterton). — 
William Morris and Wife, claimant, v. Williams and Beetham, 
of Brancepath, Bheep-farmers ; MesHrs. McHattie and Co., of 
. Taiieru, sawmillers; Chartes Edward DaDiell, of Mastertoa, 
aawmiller ; and Henry Colder, William Thomas, and Frank 
Price, of Weraiti, sawmill contractors, respondents. 
Mr. Powntill for the claimaats; Mr. HoUings for Williams and 

B«etbam, McHattie and Co., and Daniell ; Mr. Dolaa for Colder, 

Thomas, and Price. 

JUDQMBNT OF THE CoURT, DELIVUtBD BT ChAPICAU, J. (PrBBIDBHt). 

Claim under "The Workers' Compensation for Accidents Act, 
ISOO." 

The claimants were the father and mother of deceased, George 
William Morris. Deceased was engaged by Colder, Thomas, and 
Price, and had been in their employment for some yeara as a bush- 
filler, his duty being to fell trees to be converted into logs, carried 
to a mill, and reduced to timber by these three respondents. His 
death was undoubtedly caused while felling a tree by an accident 
arising out of and in the course of his employment. 

The position of the several respondents was somewhat unusual, 
as they constitute four successive parties, thus: (a.) Williams and 
Beetham as partners in a sheep-farming business, and on their 
land is a large area of bush, in felling part of which the accident 
happened, (b.) McHattie and Co. are sawmillers, who contracted 
fl itb Williams and Beetham to cut the timber trees out of this bush, 
nnd convert them into merchantable timber on agreed terms, and 
sell it for Williams and Beetham. (e.) Daniel! took a sub-oontract 
with McHattie and Co. to cut out a limited portion of this bush on 
agreed terms, McHattie and Co. retaining the principal contract 
and working with another mill at another part of the bash. 
(tl.) Colder, Thomas, and Price took a similar subcontract under 
Daniell. This uontract was varied from time to time, and the 
price was raised as more work was added to the duties undertaken 



H>;lc 



by them. Originally this contract was with Colder and Thomas, 
who were sawmiilerB, but Price joined when the additione of a bush 
expert was required, that they might undertake the wlwle work. 

All these arrangements were apparently verbal, excepting, per- 
haps, the first, and no particular CTidenoe was given respecting them 
save the last, which was embodied in a specification drawn up by 
Daniell when calling for tenders. The first contract was not in 
evidence, but the same counsel appeared for the first, second, and 
third parties, and made no special reference to any difference be- 
tween them. The specification, dated 30th November, 1898, was 
headed, " Specification of work to be done in contract for milling 
timber at Weraiti sawmill." 

The principal conditions were: "Contractor to cut timber in 
bush in such a way as to secure the most timber from bush, and to 
the satisfaction of owners of bush. Contractor to find all necessary 
NawB and axes ; to make all tramways required to bring l<^s to mill ; 
to take all and every reasonable care of bullocks and horses ; to 
shoe horses. In mill: To cut in clean marketable manner all timber 
lie ordered and required by proprietor (Daniell), and load timber 
ou to trucks ready to be removed or into planing-shed, as may be 
required. To provide themselves with files aiid emery -stoneK. 
Contractor to properly shoe, horses, and employ a competent engine- 
There were other provisions as to removing slabs from the mill, 
And a provision that " A representative of the company (Daniell) 
will be in charge, and his instructions must in all cases be obeyed. 
At all times the company will keep in repair bush tracks and chains, 
but the contractors are responsible for careful use of all plant, and 
will be held responsible for any damage done throiigli carelessness 
■ or neglect." 

It was stipulated that bullocks, horses, yokts, and appliances, 
including tramway logging - appliances, repairs, and horse - feed, 
should be provided by Daniell. He reserved himself the rigjit to 
terminate the arrangement on giving one week's notice. A price 
was on this footing agreed to at per 100 ft. 

Though it is sometimes difficult to determine whether a person 
is a contractor or a servant (Beven on Employers' Liability and 
Workers' Compensation, 280 ; Mcintosh's case, .V.2. Lnbotir 
Journal, Vol. lii, b. 880), we are satisfied that the relation of 
master and servant did not exist between the first and second, the 
aecond and the third, and the third and the fourth of the parties. 
The only thing to suggest this is that there was no determinate 
area of bush which the successive contractors had bound themselves 
•o cut out, except possibly in the case of the first and second parties. 
This circumstance is, however, insufficient alone to determine the 
question. It was assumed that the whole control of the operations 
passed to the successive sub-cOntr actors, except in so far as it wbb 
expressly reserved to the superior contractor. Ixtoking at the whole 



logic 



Ixxx 

of the proTieions td the Epecifioation, and the degree and kind of 
ikiii required to perform the Bucoeaeive duties undertaken, we 
conclude that what would in popular language be called a contract 
was not a mere agreement for personal service at piecework rates, 
but that it was a contract to convert a quantity of standing forest 
into marketable timber, and that a chain of contractors and sub- 
contractors is established through these parties as coutoniplated by 
Htction 15 of "The Workers' Compensation tor Accidents Act, 
1900." The question is important, because, had the relation of 
master and servant been established, it would have resulted in dis- 
cbarging MoHattie and Co.j Daniell, and possibly even Colder, 
Thomas, and Price from liability. 

The next question raised was whether within section 15, sub- 
section (3), the work to be eiecuted under the contract in which the 
worker was employed (a) related directly to the land or other pro- 
perty of Williams and Beetham, or (6) was a part or process in their 
trade or business. We think that it fulfils both these conditions. 
The land was their land, and llie trees were either part of the land 
or were "other property" of a closely related nature; moreover, 
tlie timber when produced and marketed was their property, so 
that the production of it was their trade or business, and the whole 
process from the felling of the trees to the selling of the boards was 
a process of their trade or business, as it certainly was a process in 
Ihe trade or business of each of the subsequent parties. 

Then it was argued that Colder, Thomas, and Price were not 
really the employers of deceased, as they only acted for the prin- 
cipals. This is partly disposed by the finding that they were sub- 
contractors; but, quite apart from this, the evidence is all one way 
(o show that they and they alone hired and paid Morris, and that 
Daniell knew nothing about bim. It is quite certain that Daniell 
was only bound to pay them the agreed rate, and that he could sot 
have b^n sued by Morris had they failed to pay his wages. It 
was suggested as an admission that Daniell had included Colder, 
Thomas, and Price and all their employees in his statement of labour 
employed when effecting an accident assurance. This only shows that 
he covered all risks connected with the work of all these men ; the 
iciationship between the parties stands upon undisputed eridenoe. 

It was argued with much ingenuity by Mr. Dolan that bueh- 
felling was not within either subsection (1) or subsection (3) of 
section 4, and that it was not " forestry " within section B of the 
amending Act of 1902. This latter oontention may be conoedod, 
as "forestry" here referred to is referred to as an eitension of 
agriculture, and must be limited to prooesfies having some analogy 
t') agriculture. It has been decided by this Court (Bunning v. 
Omundsen, 1 Dec. W.C.A. 24) that what i' in this country eaHed 
" bushfelling " is within subsection (1), and we find no reason to 
dissent from that case. That was a case of bushfelling merdy for 
the purpoee of getting rid of the bush. The matter beoomes oleaKr 
when it is considered that what deceased was employed on was dM 



Ixxzi 

merely felling a tree, but waa part of a prooesB inmdved in an 

" induetrial " and " manufBCturing " work, which in thia caae 
commenoed at the felling of the tree and ended in the turning out 
of the manufactured timber, and that all the Buccesaive partiee were 
engaged in the whole or important parts of the complete prooees. 

We are further of opinion that the work in thia case tails within 
subsection (2). The rule that general words are to be oonatrued aa 
relating to matter ejundetn generie, with particular words which 
precede them, muet not be carried too far: Reg. v. Edmundaon, 
2 E. A E. 77; Reg. v. Payne, L.R. I C.C.R. 27; Skinner and Co. 
V. Shaw and Co. (1892) 1 Ch. 413, It ia to be noted that the fonr 
particular words, "mining, quarrying, engineering, building," 
are not of one genus, save that they relate to processes having indus- 
trial objects and are generally connected aa hazardous work. The 
first two may be said to describe deatructive proceaaea not wholly 
unlike that of felling treea, while at leaat one of the others — namely, 
" building "—describes a procesa more unlike mining and quarry- 
ing than tree-felling ia unlike those operationa. We therefore 
consider that we ought to adopt what is presumably the popular 
view of thia clauae, which we are satisfied ia the view contemplated 
by the Legialature, and accordingly hold that the deceased was 
engaged in "other hazardous work." 

llie proof o! the dependence of the claimants waa supported to 
some extent by documentary evidence, but we do not think that it 
showed that more than about £1R per annum could be relied on. 
The evidence on this part of the case waa somewhat unsatisfactory ; 
but, so far as it went, a clear case was made out, and on the part 
of the son there was an apparent willingneaa to recognise his duty 
towards hia parents, who were still able to earn something. 

We award .£75 to he paid to the claimants on their joint receipt, 
and declare this sum and the costs to be a joint and several liability 
of nil the respondents. ' We allow £12 12s. costs, witnesses' expenses 
and disbursements to be fired by the Clerk of Awards. 

Dated the 29th day of November. 1904. 

Frbdk. R. Chapman, J., President, 



(39.) VOLLHEIM v. BUtCK. 
In the Court of Arbitration, Wellington District (Mastorton). — 
Elizabeth Vollheim, claimant, v. William Buick, respondent. 
Mr. Hollings (or claimant ; Dr. Trimble for respondent. 

JUDOMBNT Of THE CoURT, DELIVBRHl] BT ChAPUAM, 3. (PrHBIBBITt). 

Claim under "The Workers' Compensation for Aoeidents Act, 
1000." 

The total dependence of the claimant, who waa the widow (4 the 
'deceased, waa olearlv proved, and it was admitted that the rate of 

'«"-"*- ' Google 



w^et was HUch tttat no more tban tWrninimum of £200 oauld be 



The sole r^naiaiug cjuestioD wm whether a defence thus stated 
was ftVMlable, " No questiou has ariaeu for the determination of 
th» Court, all ^ueBtkos arieing out of the accident to the deoea«ed 
kaving beeit settikd by agreement between him and die respondent 
(luring the decaaged'a lifetime." 

The accident happened on the 36th September, 1903, deceased 
being injured by being thrown out of a cart. About a mojLth after 
this the decesBed and the respendent agreed that the latter should 
pay the fcnoer £& in respect of the accident. No express words 
were proved to huTe been used, but it may be taken that at the time 
neither party suspected the real extent of the injury, or in the least 
degree foresaw its danger to deceased, and it was assumed- that Uiie 
wae a reasonable sum to cover his claim. He died on Ute 12th 
January, 1904. It was admitted Utat death was- the result of the 
accident. Counsel were unable to refer us to any case deciding 
whether a compromise so efiected bound dependants in the even* of 
the injured man subsequeutly dying, and we are not aware that such 
a case exists. - 

We gather, however, from the wording of the sehedule to " The 
Workers' Compensation for Accidents Act, 1900," and from sections 
of the Act itself, that the L^islature did not contemplate that the 
claims of dependants should depend on the claim of deceased, but 
regarded them as distinct, though not wholly independent, claims. 
The worker's claim depends on conditions prevailing at the time 
ot and bekire the accident, while that of the claimant, - in case of 
hiB deaths arises with reference to the state of aSairs at the date of 
that event. It is even conceivable, though not probable, that a 
person who was not in a position to come forward as a daimant 
at the date of the compromise might be perfectly entitled to make 
such a claim at the date ot the dea£h. Aft injured man might marry, 
or his dependants might become impoverished in the interval. It 
is further quite conceivable that the de^ndanls might be infants 
when the daim was compromised, or might even be unborn. The 
Legislature did not intend that the claims of such persons should be 
defeated or released by the injured man, as the Act is not merely an 
Act to adjust the claims between master and servant, but is an 
Act proceeding from the policy of the State to provide oompensation 
for dependants. The third case (e) in the Second Schedule is 
apparently intended to protect any stranger who may incur expense 
in supplying medical attendance to, or in burying a man who has 
no dependants and is killed by accident. (Minton-Stonhouse, " Ac- 
cident to Workmen," 3nd ed. 1902, p. 305.) It was not intended 
ttet tUs should be controlled by the deceased, and this tfarews 
some li^t «n the position of claimants under the pMeedinp para- 
graphs. 

It i* further to be noticed tkat Motios 19 ^ the A«t toeati the 
claim in respect of injury and tbat in respect W dmth m totally 



diatinot, and fixes entirely diflerent periods of limitation in respect 
of them. The period in respect of the injury may have «ipir«d 
before that in reapect of deatii has begun to run. If an award of 
weekly payments had been made in favour of deceased, tbere eeettiB 
to be no doubt th'at, in the event of hia death from the accident, his ■■ 
dependants could recover, but would have to give credit, by reMOii 
of the proviso to clause (a), for weekly payments already made'. 
(O'Keefe v. Lovatt, 18 T.L.R. 57;) This feature appears to in- 
dicate the only interdependence of the two classes of claim. Tbere is 
no reason why the same result would not eiisue if the we^ly pay- 
ir.entB had been acknowledged and paid without arbitration. 

l^is makes it reasonable that we should construe the expression 
" weekly payments " as equivalent to " payments." Were it other- 
wise, obviously inequitable results would follow. The claimant's 
counsel did not suggest anything to the contrary, but the use by the 
Ijegislatore of tiiifi limited eipression was observed upon by respond- 
ent's counsel as part of hia argument. 

We award the claimant lie sum of X200, less £B paid to deoeaaed, 
together with costs £7 7b., witnesses' expenses and disbursementft to 
be fiied by the Gefk of Awards. 

Dat«d the 29th day of November, 1904. 

FitEDE. R. Chapman, J., President. 



OTAGO AND SOUTHLAND INDUSTRIAL DISTKICT. 

(40.) HABBOUR V. FEBGUSON£AND MITCHELL. 
In the Court of Arbitration, Otago and Southland Industrial Dis- 
trict ^Dunedin), — Henry Harbour, claimant, v. Ferguson and 
Mitt^ll, reapondfflits. 
W. L. Moc«6 for claimant; W. Sim for respondents. 

JUDOHSNT OF THX COUKT, DBLIVERUt BY ChAPIIAN, J. (PbBSIDEMT). 

The claimant, the legal personal representative of J<^n Harbour, 
claimed that he and his wife were dependants of John Harbour, who 
died from the effects of an accident arising out of and in the oourse 
of his employment as a labourer at respondents' paper-mills, which 
happened on the 5th February, 1903, the deceased dying on the 19tti 
February, 1903. 

The claimant is the father of deceased, and was described as a 
dairy-farmer. The principal matter in dispute was the dependence. 

Deceased had in the previous three years earned £283 16s. in 
respondents' service. It was suggested by the claimant that a new 
equivalent to this should be applied thus: £19 12s. in payment of 
funeral expenses, and the balance for the joint benefit of the father 
tind mother. 

Digitizecy Google 



IzxXiT 

The question to be determined arlaee upon the foUowing state- 
ment of lacts which were very candidly expt&ioed bj the claimant ; 
Claimftut had a small farm lu McGIaaban's Valley, wortli i:.l,000, 
in addition to wliich he had cows, carta, and horaes worth £150. 
The £arm was subject to a nwrtgage of £300, carrying £16 10s. 
interest. Since the death of deceased claimant had let the farm to 
two sons for £60 per annum; this included adjoining land received 
from deceased's son's estate. He considered that his own farm 
was worth about £15 per annum by itself, but this did not include 
the dwellinghouse which he had reserved, and in which he lives 
(worth perhaps 6a. or Tb. ger week), to which was attached a garden 
in whicit he could work and make £10 or £13 per annum by selling 
fruit. The son earned £1 IBs, per week. Ho lived with his 
parents, paying 158. per week for his board, and gave a considera- 
able amount of help with the cows. It may be assumed that the 
board money paid would leave a profit of about 6a. per week, while 
an equivalent for the assietauce rendered might be obtained by 
hiring a boy for part of the day at 5s. or 7b. 6d. per week. The 
SOD died intestate, and the claimant received from his estate land 
and money (the proceeds of an insurance policy) to the net amount 
of at least £550. The deceased had bought or built a cottage near 
to the place where he worked, and contemplated marrying and living 
there. White the deceased was living with the father the latter 
had saved £50 ; this fact was relied on as showing that the claimant 
was in one way or another in receipt of more than his keep. It was 
the death of his son and the consequent loss of his personal services 
that caused claimant to let the farm, but it may be assumed 
that the son's marriage would have led to the same result. Other 
eons occasionally gave a hand about the place, but are not stated 
to have contributed anything in money. The claimant is siity- 
three and the wife siity-five years of age, the former not past work. 

Looking at the contingency of the son marrying, it may be 
assumed that the income from his estate approiimat«ly replaces 
the pecuniary and personal assistance given by him while applying 
the capital for the support of the parents ; it certainly more than 
replaces that assistance, as a joint annuity for the lives of both '~ 
parents in excess of the value of these contributions could be pur- ■ 
chased for far less than the sum left by him. In these circumstances 
the question is whether a claim in respect of partial dependence 
arises. We are of opinion that it does not. The first clause of the 
Second Schedule (clause a) fiies the amount of compensation for a 
person who is wholly dependent arbitrarily. The Court has only to 
find the fact of total dependence on deceased's earnings, and ascer- 
tain the average weekly earnings, and the statute does the rest. 
The second clause {clause b) is different. Under it, if there are no 
total dependants, but only partial dependants, then a sum has to be 
found by the Court. This is to be " such sum ... as may be 
determined on under this Act to be reasonable and proportionate to 
the loss or damage suffered by the said dependants." It must be 



„Googlc 



llZXT 

borne in mind.that this is to measure-not the loss in «TfiTy senw by 
tn^^ death of the son, but the los^ in respect of the dependence on his 
earnings. In this case no loss or damage in a pecuniary sense has 
been suffered. Were we to lose sight of this fact, we might be 
eucouraging the view that this statute is aomething more than a 
competisatory provisionj but it is manifestly an Act dealing with 
pecuniary compensatioii for pecuniary loss, both in the case of a 
claim by an injured worker and in the case of a claim by his de- 
[lendaiLts. These considerations, we think, let in the contention of 
respondents' counsel that the true measure of oompenaation Is the 
same as in the case of an action under " The Deaths by Accidents 
Cempeneation Act, 18S0," and its English equivalent, in which 
credit has to be given by the olaimantg for the fruits of an accident 
policy effected by deceased of which the claimants take the benefit. 
(See Hicks v. Newport, &o.. Hallway Company, 4 B. & C. 403; 
Grand Trunk of Canada v. Jennings, 13 A.C. 800; Bradburn v. 
O. W. Railway Company, L.R. 10 Ei. 1 ; Greymouth - Point Eliza- 
beth Coal Company v. Melvor, 16 N.Z.L.R. 258.) 

To realise how far a different view of the scope of the Act might 
carry one, a simple illustration may be put : A is dependent on 
B's earnings to the extent of .£50 per annum. B is killed by acci- 
dent, and by his will leaves A £100 per annum. Is A entitled to 
bn oonipensated by B's employer! We are satisfied that he is not. 
If the annuity left were £60, be would not be so entitled ; but if it 
were £25 he would.be entitled to proportionate compensation. This 
cate is very much like the suggested case of leaving £50. 

Then, as to the position of the mother, so far as it has to be 
considered separately, it appears to stand thus: The husband is 
bound to suppmrt the wife in all events, and not merely in the sense 
ill which children are liable to support their parents, if not other- 
wise provided for. Quite irrespective of her means, a husband has 
to support his wife under his own roof. Here the husband had the 
means of supporting his wife at least for a limited time, and was 
doing so, though in this he was assisted by his son in the manner 
described. The death of the son placed him in a pecuniary posi- 
tion which enabled bun to continue this support more effectually 
than before. We think that the two oases have to be considered 
together, and that the husband's means of support must be con- 
sidered to be the wife's means of support to the eitent to which they 
reach, and in this case to the extent of being adequate. 

We have been referred to the judgment of Cooper, J., in the 
Supreme Court case Ashcroft v. Cable (VI Gaz. L.R. 334), which 
is certainly opposed to the decision at which we have arrived. It is 
based on tike English case of Pryoe v. Penrikyber Navigation Colliery 
Company (1902 1 KB. 221 R5 L.R. 477; i W.C.C. 115). That 
cuse is a decision on the first part of the schedule only, and we are 
unable to agree that it applies to this case; and as there is no appeal 
from this judgment, its delivery has been delayed in order that the 



nGoogIc 



Ixxivi 

PivsideUt might conaiilt several of thte Judges on tbi* point. 1%« 
majority of them hare ezpremed ooncurrenoe in* ilw opinion here 
expressed. 

It is somewhat remarkable that, despite the enormous nnraber of 
cases deeid^ under this Art, there is nothing in the Gn^iah doei- 
eions to assiet us. It would seem as if wage-earners who fall within 
the Act in the United Kingdom are not possessed of accumulated 
riKtans sufficient to make it worth while to raise this question. 

The case falls within the last clause (e) of the schedule, and we 
award the sum of £19 128. for funeral expenses, with £5 5s., to- 
gether with witnesses' expeiises and disbursements to be fixed by the 
Clerk of Awards. 

Dated this 23rd day of December, 190*. 

Frrdk. R; CRAPttAM, J., President. 



ioy Google 



INDEXES. 



c.™^. 


. 


Place. 


Ft»l. 


B>gfey, Ihuiiel - 


ITwKiiw 

New Ze^d SUpping OmpMiy 


Dunedin 


IS, 30 


Burie . . 


Wellington .. 


U 


Bottom .. 


Weitport Coal Comauj 


Westport 


31 


Mght, Juie 


(limited) 


Waihl 


43 


ButmiBg 




04 


Oray^.. 


Timaru Harbour Board 


Timaru 


86 


Hewitt Family . . 


Uninn Stsamdiip Oempany . . 


Dunedin 


£2 


Holmee, Henry . . 


Westport Coal Company 


Westport 


27 


Little, John 


Mayor, CounoiUora, and QtizanB 

of Dimedin 
Suooeu GpM.dre<^5ing Company 
Ftart. Chanoe ^?. dredging 


Dunedin 


33 


UcCluBkey. D. 


Lawrence 


2B 






6-» 




Company 






North, SUBM 




Bmruide, Otago 


22 


Phinix . . 


Brown and Oeddoa .. 


Auckland . . 


1 


Beddie, David . . 


Mayor, Btirg«aM«, and Gomcil- 
olutha 


BrioluUia 


t3 


Beid.W. B. 


Lady Charlton Gold ■ dredging 


CkvHm Creek, 


10 






Otago 




ShKW. UarOa Ann 


Popham 


WelUBgton .. 


■23 


Smith, W. H. 


QMke, John 




16 


Smythe, W. G. . . 


and CHuttia •! Aoldhmd, an<l 
H. Smythe 


AufUaod 


' 


Southerby, Sftmuel 


Auckland Hospital and Ctiari- 
Uble Aid Board 


Auckland . . 


40 


r^ :: 


Wertport Coal Compuy 


Westport 


27 


VallBDoe 


W««gum .. 


37 



i, Google 



VOL. II. 





Brown and Sons . . 


J 


Hamaton, Andrew 


New Zealand Crown MinM Campaaj 


2.14 




OpotikiTowaP<»rd 
' Eanrl Umber CiAnbany . . 
Hitntaii Gold Syndioftte .. 


4.15 


Stoveiw. Jowph 


7 


Himns 


12 






12 


Diok.0^; . . 


16 


Qr»y 


"Rmaro HftTjwiir Board .. 


18 


Revdl, ChariM 


Rout,Q. m: 


19 


Seaton, Cli&riM 


QrOTmouth - Point Elizabeth Railway and Coot 
Company 


19 






Hughe. 


Unity Oold-diedging Company 


21 


HoK»r 


Hayea and GiUon ..W 


22 


Attwood 


SmithBroB. .. ..H 


24 


Oi^lM, BdcbMd 


Barton .. "i .. 


26 
27 


phuiiiH. :; :: 


Seager 1 


2» 






30 


Ral 


SteywiB .. .. n 


33 


MoUoy 


MorriiOT 1 


38 


Levett 


BigneU .. ., .. . 


40 


Hin 


New ZealNtd Coal and Oil Ca^npany 


42 



HumfEreye. CWles 
Pnblio Trustee (tot 


Hurray, Charles Pnak ' .. ... 


1 


Zimmerman, Frank . . . , . . 


2 


Smith, John 


Griffin. John . . 


5 


Andrews. Richard 


Gammon, Gec»ge Albert and William Alfred. . 


7 


Hink, Henry 


Nathan uid Co. .. 


9 


HoCarteey, Witham .. 


Grant, William Yatee 


10 








Mo«ee BaiTowman) 






Penrose. John 


PoweUandSone 


16 


TnraM 


Bailey 




19 


Quinn 


TheKing 




19 


Ayrei, Alfred Arthur . . 


HiU, Thomas Heory 




19 


Beoneas 


SoQter .. 




■20 


Kirk 


Colonial Sugar Company .. 




20 


Smith 


Laing 




20 


Wilion 


Tau^ Coal-ainea (limited) 




20 


ChreraH 


Smeed and othors 




20 


Norris 


Leyland O'Brien Timber Company . 




30 


ffGrady 


Wsdhi Gold-mining Company and anotiiet . . 


20 


8aT.ge 


Whakatane County Conndl 


•■ 


a) 



„Google 



VOL. nT.—eonlim 



cu-.,: ■ 


BtVOBOBOt. 


Pag«. 


Btowa 


New Zealand Crown Mines Company 


20 


Hm 


30 


lyonoiB 


Davidson .... 


■30 


Polkmghome 


Waihi Gold.mining Compwy 


20 


Snodgcsa» . . 


George .. 


20 


Boryer 


BaUey and Lowe 


20 


KiBBling 


R-aaer and Sons . . 


30 


Boberte, David 


and Lindsay Johnstone 


31 


Sleigh 




31 


Middlebrook 


Bond Bros, and Judd 


23 


Smith 


Colonial Ammunition Company 


23 


Smith and others 


Kddle Bros, 


23 


Tiemey 

Middlebrook 


Buller Junction Gold- dredging Company 
Bond Bros, and another . . 




23 


Flood 


Kirkpatrick and Co (limitedj 


23 


Larking .. 


Handyside. Roberta, and Co. 


23 


Campbdl . . 


MoAhster 


23 


Ashcroft, WilUara . . 


Cable and Co 


24 


Heath 


Union Steamship Company. (Limited) 


26 


Sy^es, WilUttm " . . 




36 


Coi 


Moore Bros. 


38 


Thompson . . 


Shaw, Savill, and Albion Company 


38 


THnV» 


a. P. Wright 


38 


Martta 


Graham and Groig ' .. 


38 


Diokena 


Geraldine Eoad Board 


38 


Qibaon 


Lane and Co. 


38 




SuckliMBroB. 

Spain, Thomas . . 


38 


Keitli, Robert 


38 


Seed, Mary Jane 




39 


Hjne«, Philip 


McCarthy, John 


46 


Shielda, Edward 


MUl, John, and Co. 


49 


Travia, Cliarlea Alei- 


Watoralow, Walter Sinclair 


02 


andwMcKft? 






Wuren, Bessie (deoision 




63 


tion-money) 
Campbell, V. 






Hatch, Joseph 

New Zealand Coal and Oil Company 


64 


Penman 


64 


Roberts,iWalter 


Campbell, Alexander, and Burke, Daniel 


55 


CtdLer 




56 


MoCroaaan. WUliam .. 


Barton, John 


57 


lUckard, Henry 


Bickard, Albert; Mozham, Benjamin; and 
Snow, Ernest H. 


68 


Gates. Alfred Charles 


Webb. Arthm' Henry 


69 


Huotd 






Darragh, Patrick 


Davidson, John 


GO 


McDonald family . . 


Shaw, Savill, and Albion Company (limited) . . 


61 


Lnok, John . . 


Golden Chain Dredging Company (limited) . . 
Grimwood, Robert; Wimams, BVank Henry; 


62 


DnS. David . . 


06 




md WiUiams. William Forbes 





i, Google 



xo 


IKDSZBB. 




CWinui. 


tepoid-K. 


PM^ 


lUth, Robert 


Bp<dn.n«ttM 

UUlMidCa 


68 


Keebb 


as 


Hdf otd 


UoEwan 


68 


WamnKton ■ ■ 




68 


Collier 


Hopkms 


68 


Bobort. 


Campbdl and auothtr 


68 


SXT 


Nigbtcape Coal CompMijF .. 




N»pi«, John 
WiUiams, John 


Th«Kii«! 

Mftyor, Couneillort. and CitiionB of Dunedin. . 


69 


71 


SmoiU 


AlBiandM 


76 


MorriB and wife 


C. £. Daniell, Heoiy Golder. William Thomaa, 

and Frank Prioe 


78 


VoUliaim. Eliubeth .. 


William Bniok 


81 


Harbour, Hetuy 


FerguMW and HiteheU 


83 



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